| SooperKanoon Citation | sooperkanoon.com/902893 |
| Subject | Intellectual Property Rights |
| Court | Kolkata High Court |
| Decided On | Apr-21-2010 |
| Case Number | W.P. 669 (W) of 2010 |
| Judge | Dipankar Datta, J. |
| Acts | Trade Marks Act, 1999 - Sections 47, 57 and 92; ;Indian Penal Code (IPC), 1860 - Sections 193, 196 and 228; ;Code of Criminal Procedure (CrPC) , 1973 - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;Code of Civil Procedure (CPC) , 1908 - Order 8, Rule 10 - Order 9, Rules 7 and 13 |
| Appellant | Prabhu Shankar Agarwal and ors. |
| Respondent | Registrar of Trade Marks and ors. |
| Appellant Advocate | S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs. |
| Respondent Advocate | P.C. Sen,; A. Singh,; M. Rana and; |
| Cases Referred | S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors. |
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 120]Code Contextecho "<div class='table-bordered'><b>Excerpt:</b><br/>";if (trim($desc['Judgement']['casenote'])) {echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['casenote']))), $query);$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]- mining direction to state government to consider all applications afresh in light of interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules main issue : whether the state government's recommendation dated 06.12.2004 and the proceedings of the chief minister are contrary to the provisions of section 11 of the act and rules 59 and 60 of mc rules and not valid in law. a perusal of the proceedings of the chief minister shows that no clear reasons were given to show as to why jindal and kalyani were preferred over other applicants.[para 18]--the proceedings of the chief minister, at no level, consider the various guiding criteria mentioned in section 11(3)[para 19] b) whether the respondent-jindal's application dated 24.10.2002 made prior to the notification dated.....Code Contextecho "<div class='table-bordered'><b>Excerpt:</b><br/>";if (trim($desc['Judgement']['casenote'])) {echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['casenote']))), $query);$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. 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"</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]1. the petitioners are the holders of a registered trade mark 'haldiram bhujiawala with hrb and v logo'.2. a rectification petition under section 47 of the trade marks act, 1999 (hereafter the act) read with section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the intellectual property appellate board (hereafter the board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. the rectification petition was registered as ora/14/2004/tm/kol. it is not in dispute that the petitioners have been contesting the rectification petition.3. the board had fixed 11.11.2009 as the date of hearing of the rectification petition. the petitioners had filed an application for adjournment of hearing on the ground stated.....Code Context}//highest occurence of word in the judgementecho $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 0include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 1include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
2. A rectification petition under Section 47 of the Trade Marks Act, 1999 (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 2include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 3include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 4include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 5include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 6include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 7include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 8include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(i) to act and proceed in accordance with law;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 9include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 10include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 11include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(iv) to grant proper opportunity of hearing to the petitioners;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 12include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 13include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 14include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
8. In support of his submissions, Mr. Mookerjee relied on the following decisions:
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 15include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
: AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 16include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
9. The respondents 1 and 2 were not represented despite service.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 17include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 18include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 19include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 20include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 21include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 22include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 23include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 24include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
17. He, accordingly prayed for dismissal of the writ petition.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 25include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 26include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 27include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 28include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 29include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 30include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
21. I have heard Mr. Mookerjee and Mr. Singh at length.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 31include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 32include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 33include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 34include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 35include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 36include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(a) receiving evidence;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 37include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(b) issuing commissions for examination of witnesses;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 38include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(c) requisitioning any public record; and
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 39include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(d) any other matter which may be prescribed.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 40include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 41include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 42include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(2) He shall have the custody of the records of the Appellate Board.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 43include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 44include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 45include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 46include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 47include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(i) to receive all applications, appeals, counter statements, replies and other documents;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 48include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 49include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 50include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 51include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(v) direct any formal amendment of records;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 52include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(vi) to order supply of copies of documents to parties to proceedings;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 53include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(vii) to grant leave to inspect the record of the Appellate Board;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 54include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 55include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 56include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 57include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 58include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 59include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 60include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 61include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
29. There shall be no order as to costs.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 62include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 63include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Later :
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a href="http://legalcrystal.com/judgements/description/662801">Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a href="http://legalcrystal.com/judgements/description/641784">Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p style="text-align: justify;">1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p style="text-align: justify;">2. A rectification petition under Section 47 of the <a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p style="text-align: justify;">3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p style="text-align: justify;">4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p style="text-align: justify;">5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p style="text-align: justify;">I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p style="text-align: justify;">6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p style="text-align: justify;">(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p style="text-align: justify;">(i) to act and proceed in accordance with law;</p><p style="text-align: justify;">(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p style="text-align: justify;">(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p style="text-align: justify;">(iv) to grant proper opportunity of hearing to the petitioners;</p><p style="text-align: justify;">(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p style="text-align: justify;">7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p style="text-align: justify;">8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p style="text-align: justify;"> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p style="text-align: justify;">9. The respondents 1 and 2 were not represented despite service.</p><p style="text-align: justify;">10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p style="text-align: justify;">11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p style="text-align: justify;">12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p style="text-align: justify;">13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p style="text-align: justify;">14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p style="text-align: justify;">15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p style="text-align: justify;">16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p style="text-align: justify;">17. He, accordingly prayed for dismissal of the writ petition.</p><p style="text-align: justify;">18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p style="text-align: justify;">On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p style="text-align: justify;">19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p style="text-align: justify;">Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p style="text-align: justify;">20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p style="text-align: justify;">21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p style="text-align: justify;">22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p style="text-align: justify;">23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p style="text-align: justify;">24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p style="text-align: justify;">92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p style="text-align: justify;">(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p style="text-align: justify;">(a) receiving evidence;</p><p style="text-align: justify;">(b) issuing commissions for examination of witnesses;</p><p style="text-align: justify;">(c) requisitioning any public record; and</p><p style="text-align: justify;">(d) any other matter which may be prescribed.</p><p style="text-align: justify;">(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p style="text-align: justify;">26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p style="text-align: justify;">(2) He shall have the custody of the records of the Appellate Board.</p><p style="text-align: justify;">(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p style="text-align: justify;">(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p style="text-align: justify;">(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p style="text-align: justify;">27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p style="text-align: justify;">(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p style="text-align: justify;">(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p style="text-align: justify;">(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p style="text-align: justify;">(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p style="text-align: justify;">(v) direct any formal amendment of records;</p><p style="text-align: justify;">(vi) to order supply of copies of documents to parties to proceedings;</p><p style="text-align: justify;">(vii) to grant leave to inspect the record of the Appellate Board;</p><p style="text-align: justify;">(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p style="text-align: justify;">authority;</p><p style="text-align: justify;">(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p style="text-align: justify;">25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p style="text-align: justify;">26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p style="text-align: justify;">27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p style="text-align: justify;">28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p style="text-align: justify;">29. There shall be no order as to costs.</p><p style="text-align: justify;">30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p style="text-align: justify;">Later :</p><p style="text-align: justify;">Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'prabhu-shankar-agarwal-vs-registrar-trade', 'args' => array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) ) $title_for_layout = 'Prabhu Shankar Agarwal and ors Vs Registrar of Trade Marks and ors - Citation 902893 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '902893', 'acts' => '<a href="/act/50932/trade-marks-act-1999-47-of-1999-complete-act">Trade Marks Act, 1999</a> - Sections 47, 57 and 92; ;<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 193, 196 and 228; ;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Section 195; ;Intellectual Property Appellate Board (Procedure) Rules, 2003 - Rules 26, 27 and 27(2); ;<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 8, Rule 10 - Order 9, Rules 7 and 13', 'appealno' => 'W.P. 669 (W) of 2010', 'appellant' => 'Prabhu Shankar Agarwal and ors.', 'authreffered' => '', 'casename' => 'Prabhu Shankar Agarwal and ors. Vs. Registrar of Trade Marks and ors.', 'casenote' => ' - MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of Section 11 of the Act and Rules 59 and 60 of MC Rules and not valid in law. A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants.[para 18]--The proceedings of the Chief Minister, at no level, consider the various guiding criteria mentioned in Section 11(3)[para 19] b) Whether the respondent-Jindal's application dated 24.10.2002 made prior to the Notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- Applications made prior to the notification cannot be entertained because they are premature.[para 21] If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.[para 53] c) Whether the order of the High Court of Karnataka in Ziaulla Sharieff's case permit the consideration of the respondent-Jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. The order of the High Court of Karnataka in Ziaulla Sharieff's case does not permit the consideration of Jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) Whether Rule 35 of the MC Rules justify the recommendation of the State Government in favour of the Respondents-Jindal and Kalyani -- As discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) Whether the criterion of "captive consumption" referred to in <a>Tata Iron and Steel Co. Ltd. vs. Union of India,</a> (1996) 9 SCC 709, have any application in this case despite not being one of the factors referred to in Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules -- We have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committee's Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. This is fortified by decision of this Court in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC 597, para 45.[para 35] f) Whether factors such as the past commitments by the State Government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the MMDR Act and the MC Rules constituting a complete Code -- It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] In view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the Rules.[para 25] Central and the State Government act as mere delegates of Parliament while exercising powers under the MMDR Act and the MC Rules.[para 27] g) Whether the recommendation in favour of respondents-Jindal and Kalyani saved by the operation of the Law of Equity. The Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of <a>Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186</a> and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) Whether the learned single Judge as well as the Division Bench are justified in arriving at such conclusion. Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.[para 55] The Division Bench has erred in concluding that the Jindal's application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1) [para 52] i) Whether it is advisable to remit it to the Central Government. [Para 6] The Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. we reject the request for remitting the matter to the Central Government for its decision. --[para 56] HELD : In the light of the above discussion, the impugned order of the Division Bench of the High Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as well as the decision of the State Government dated 26/27.02.2002 and the subsequent decision of the Central Government dated 29.07.2003 are quashed. We direct the State Government to consider all applications afresh in light of our interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and make a recommendation to the Central Government within a period of four months from the date of receipt of the copy of this judgment. It is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the State Government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. The State Government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. All the appeals are allowed to the extent mentioned above. No costs.[para 57,58]', 'caseanalysis' => null, 'casesref' => 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.;', 'citingcases' => '', 'counselplain' => ' S.N. Mookerjee,; M. Agarwal and; B. Manot, Advs.', 'counseldef' => ' P.C. Sen,; A. Singh,; M. Rana and; ', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2010-04-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' Dipankar Datta, J.', 'judgement' => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.</p><p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.</p><p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.</p><p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.</p><p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:</p><p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.</p><p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:</p><p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.</p><p>(i) to act and proceed in accordance with law;</p><p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;</p><p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL</p><p>(iv) to grant proper opportunity of hearing to the petitioners;</p><p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;</p><p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.</p><p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:</p><p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.</p><p>9. The respondents 1 and 2 were not represented despite service.</p><p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.</p><p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.</p><p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.</p><p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.</p><p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.</p><p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.</p><p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.</p><p>17. He, accordingly prayed for dismissal of the writ petition.</p><p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:</p><p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....</p><p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:</p><p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.</p><p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.</p><p>21. I have heard Mr. Mookerjee and Mr. Singh at length.</p><p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.</p><p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.</p><p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:</p><p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.</p><p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:</p><p>(a) receiving evidence;</p><p>(b) issuing commissions for examination of witnesses;</p><p>(c) requisitioning any public record; and</p><p>(d) any other matter which may be prescribed.</p><p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).</p><p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.</p><p>(2) He shall have the custody of the records of the Appellate Board.</p><p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.</p><p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.</p><p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..</p><p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :</p><p>(i) to receive all applications, appeals, counter statements, replies and other documents;</p><p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;</p><p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;</p><p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;</p><p>(v) direct any formal amendment of records;</p><p>(vi) to order supply of copies of documents to parties to proceedings;</p><p>(vii) to grant leave to inspect the record of the Appellate Board;</p><p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other</p><p>authority;</p><p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. </p><p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.</p><p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.</p><p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.</p><p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.</p><p>29. There shall be no order as to costs.</p><p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.</p><p>Later :</p><p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Registrar of Trade Marks and ors.', 'sub' => 'Intellectual Property Rights', 'link' => null, 'circuit' => null ) ) $casename_url = 'prabhu-shankar-agarwal-vs-registrar-trade' $args = array( (int) 0 => '902893', (int) 1 => 'prabhu-shankar-agarwal-vs-registrar-trade' ) $url = 'https://sooperkanoon.com/case/amp/902893/prabhu-shankar-agarwal-vs-registrar-trade' $ctype = ' High Court' $caseref = 'S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.<br>' $content = array( (int) 0 => '<p>1. The petitioners are the holders of a registered trade mark 'HALDIRAM BHUJIAWALA with HRB and V logo'.', (int) 1 => '<p>2. A rectification petition under Section 47 of the <a>Trade Marks Act, 1999</a> (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.', (int) 2 => '<p>3. The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein.', (int) 3 => '<p>4. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment.', (int) 4 => '<p>5. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows:', (int) 5 => '<p>I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith.', (int) 6 => '<p>6. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief:', (int) 7 => '<p>(a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them.', (int) 8 => '<p>(i) to act and proceed in accordance with law;', (int) 9 => '<p>(ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL;', (int) 10 => '<p>(iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL', (int) 11 => '<p>(iv) to grant proper opportunity of hearing to the petitioners;', (int) 12 => '<p>(b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;', (int) 13 => '<p>7. Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition.', (int) 14 => '<p>8. In support of his submissions, Mr. Mookerjee relied on the following decisions:', (int) 15 => '<p> : AIR 1984 Delhi 439 Suresh Kumar v. Baldev Raj, : AIR 1998 Punjab and Haryana 197 Chandgi v. Mehar Chand and Ors. and : AIR 2006 SC 1194 Vidyawati Gupta v. Bhakti Hari Nayak.', (int) 16 => '<p>9. The respondents 1 and 2 were not represented despite service.', (int) 17 => '<p>10. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to Clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.', (int) 18 => '<p>11. He further tried to impress the Court that the petitioners have been indulging in unfair tactics to prolong the proceedings before the Board and that would be manifest from the conduct of the petitioners who applied for adjournment of hearing fixed on 11.11.2009 only a day prior thereto whereas in terms of provisions contained in the Rules, the prayer for adjournment had to be made 15 days in advance of the date of hearing. Not only that, in terms of Rule 10 of the Rules, the petitioners being the respondents before the Board were required to file three complete sets of counter statements in the prescribed form containing their reply to the rectification petition along with documents including evidences in the form of affidavits in paper book form before the registry within two months of service of notice on them in respect of filing thereof. Although the petitioners have filed counter statement long back, the evidence which they now seek to rely on ought not to be allowed to be taken on record since admittedly it is not a case where the additional evidence did not exist at the time counter statement was filed.', (int) 19 => '<p>12. Lastly, it was submitted that the petition suffers from suppression of facts. Statement made in paragraph 19 of the petition was referred to in this connection. According to him, no request for adjournment was at all filed by the petitioners and therefore they are guilty of misleading the Court.', (int) 20 => '<p>13. The decision reported in : AIR 1964 SC 993 Arjun Singh v. Mohindra Kumar, was relied on by Mr. Singh for the proposition that once the Court reserves judgment after completion of hearing, parties have no further rights or privileges in the matter and that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to a party the remedy of getting orders in the interregnum.', (int) 21 => '<p>14. The decisions reported in 132 (2006) DLT 166 Yash Mehra v. Arundhati Mehra, and in 2007 VII AD (Delhi) 303, Satya Bhushan Koura (Shri) v. Smt. Vijaya Myne were referred to by him wherein the decision in Arjun Singh (supra) was followed by the learned Judges of the Delhi High Court and the applications filed by the respective parties after reservation of judgment were held to be not maintainable and ultimately dismissed.', (int) 22 => '<p>15. The decision reported in AIR 2001 SC 134 Mahavir Singh and Ors. v. Naresh Chandra and Anr., and a bench decision of this Court reported in : AIR 1952 Calcutta 368 Mt. Muneswari and Ors. v. Sm. Jugal Mohini Dasi, were relied on by him wherein additional evidence sought to be adduced after hearing of the appeals had been concluded and judgment reserved was disallowed.', (int) 23 => '<p>16. On the point of suppression of material facts, he referred to the decisions reported in : (2007) 6 SCC 120 Arunima Baruah v. Union of India and Ors. and in : JT 2009 (7) SC 92, State of Orissa and Ors. v. Harapriya Bisoi.', (int) 24 => '<p>17. He, accordingly prayed for dismissal of the writ petition.', (int) 25 => '<p>18. In reply, Mr. Mookerjee referred to the decision reported in : AIR 1987 Cal 111 Ramesh Chandra Bhattacharya v. Corporation of Calcutta and Ors., wherein the decision in Arjun Singh (supra) was considered. In that case, despite conclusion of ex parte hearing and reservation of judgment in the suit it was held on consideration of Rule 10 of Order 8, Civil Procedure Code that the trial court would be competent to grant permission to file written statement. Paragraph 7 of the decision was relied on wherein it was held as follows:', (int) 26 => '<p>On perusing the Rule 10 of Order 8 carefully, I have no doubt in my mind that Rule 10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Rule 10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is illegal and invalid. In my view the Trial Court had the jurisdiction under Order 8, Rule 10, Civil P.C. to accept the written statement even at that stage....', (int) 27 => '<p>19. I had the occasion to consider the decision in Arjun Singh (supra) while deciding W.P. 1773 of 2008 (Tata Motors Limited and Anr. v. State of West Bengal and Ors.) After reserving judgment, I had placed the writ petition on board for rehearing. The decision in Arjun Singh (supra) was sought to be relied on by the petitioners. On their behalf it was submitted that the Court was not competent to take into consideration events subsequent to reserving of judgment. The objection was overruled. The decision in Arjun Singh (supra) was distinguished in the following words:', (int) 28 => '<p>Reliance placed by Mr. Pal on the decision in Arjun Singh (supra) is of no assistance to him. The said decision was rendered in a completely different fact situation. The defendant in the suit had applied under Order 9 Rule 13, Civil Procedure Code for setting aside the ex parte decree passed against him and prayed for reopening of the proceedings which had been conducted in his absence. The application had been dismissed as barred by res judicata since an earlier application filed by him under Order 9 Rule 7 had been dismissed. The Apex Court opined that the Civil Judge was not competent to entertain the application dated 31st May, 1958 purporting to be under Order 9 Rule 7 of the Code and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order 9 Rule 13. The observations of the Apex Court on which Mr. Pal relied on have to be read in the context of the factual situation presented before it in that case. The defendant in that case had not appeared on the date fixed for ex parte hearing which led the Trial Court to hear the plaintiff and reserve its judgment. The defendant appeared after the conclusion of hearing but before delivery of judgment and filed an application under Order 9 Rule 7. The Civil Court rejected the application. It was in such a fact situation the Apex Court observed that the Court having reserved judgment, the stage contemplated by Order 9 Rule 7 had passed and that the only stage that was yet to be completed is to pronounce the judgment and pass the decree. In such circumstances, it was held that there was no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to offer to the party the remedy of getting orders passed on the line of Order 9 Rule 7.', (int) 29 => '<p>20.The decision in Tata Motors (supra) was made over to Mr. Singh. He sought to distinguish the decision by submitting that the Court itself had recalled the order reserving the judgment and not on the basis of the prayer made by any party to the proceedings. Accordingly, he urged the Court to accept his argument.', (int) 30 => '<p>21. I have heard Mr. Mookerjee and Mr. Singh at length.', (int) 31 => '<p>22. The contention that the petition suffers from suppression of material facts has not impressed me. In view of the decision reported in : (2004) 7 SCC 166, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., the fact suppressed must be material in the sense that it would have had an effect on the merits of the case. The contents of paragraph 19 of the petition at best may amount to misstatement of facts but not suppression of a material fact that would affect the merits of the case. Whether or not application for adjournment of the hearing before the Board on 11.11.2009 was filed or not has no bearing on the issue that has arisen for consideration before me. The contention, accordingly, stands overruled.', (int) 32 => '<p>23. I do not consider it necessary to conclusively decide on this petition as to whether the miscellaneous petition after judgment was reserved could at all be filed or whether the prayer made in the miscellaneous petition ought to be allowed or not by the Board. If at all the miscellaneous petition had been placed before the Board, it could have taken a decision on it in accordance with law. However, it appears from the materials on record, that the miscellaneous petition did not even reach the Board. Immediately after it was filed, the Deputy Registrar in course of scrutiny found that judgment on the rectification petition had been reserved and, accordingly, returned the same to the petitioners. In the given facts, it solely ought to exercise my consideration as to whether the Deputy Registrar was at all justified in returning the miscellaneous petition to the petitioners or not.', (int) 33 => '<p>24. For a decision on such issue, one cannot overlook the provisions contained in Section 92 of the Act as well as Rules 26 and 27 of the Rules. The same are quoted below:', (int) 34 => '<p>92. Procedure and powers of Appellate Board.--(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.', (int) 35 => '<p>(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:', (int) 36 => '<p>(a) receiving evidence;', (int) 37 => '<p>(b) issuing commissions for examination of witnesses;', (int) 38 => '<p>(c) requisitioning any public record; and', (int) 39 => '<p>(d) any other matter which may be prescribed.', (int) 40 => '<p>(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Board shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).', (int) 41 => '<p>26. Functions of the Deputy Registrar. (1) The Deputy Registrar shall discharge the functions under the general superintendence of the Chairman. He shall discharge such other functions as are assigned to him under these rules or by the Chairman by a separate order in writing.', (int) 42 => '<p>(2) He shall have the custody of the records of the Appellate Board.', (int) 43 => '<p>(3) The official seal of the Appellate Board shall be kept in the custody of the Deputy Registrar.', (int) 44 => '<p>(4) Subject to any general or special directions of the Chairman, the official seal of the Appellate Board shall not be affixed to any order, summons or other process save under the authority in writing from the Deputy Registrar.', (int) 45 => '<p>(5) The official seal of the Appellate Board shall not be affixed to any certified copy issued by the Appellate Board save under the authority in writing of the Deputy Registrar..', (int) 46 => '<p>27. Additional functions and duties of the Deputy Registrar. In addition to the functions and duties assigned under Rule 26, the Deputy Registrar shall have the following functions and duties subject to any general or special orders of the Chairman, namely :', (int) 47 => '<p>(i) to receive all applications, appeals, counter statements, replies and other documents;', (int) 48 => '<p>(ii) to decide all questions arising out of the scrutiny of the appeals and applications before they are registered;', (int) 49 => '<p>(iii) to require any application, appeal, counter statement, replies presented to the Appellate Board to be amended in accordance with the rules;', (int) 50 => '<p>(iv) subject to the directions of the Chairman, to fix date of hearing of the applications or appeals or other proceedings and issue notices therefore;', (int) 51 => '<p>(v) direct any formal amendment of records;', (int) 52 => '<p>(vi) to order supply of copies of documents to parties to proceedings;', (int) 53 => '<p>(vii) to grant leave to inspect the record of the Appellate Board;', (int) 54 => '<p>(viii) to requisition records from the custody of any court, Registrar of Trade Marks or other', (int) 55 => '<p>authority;', (int) 56 => '<p>(ix) to decide questions relating to extension of time in respect of filing of counter statement, reply, rejoinder, etc. ', (int) 57 => '<p>25. It is one of the cardinal principles of natural justice that no one should be condemned unheard. This principle has been extended to mean that each party must have fair, adequate and reasonable opportunity of representation of its case. It is the statutory mandate that the Board in deciding appeals and applications shall be guided by the principles of natural justice and would not be bound by the provisions of the Civil Procedure Code. Proceedings before the Board are judicial proceedings. So long decision is not given on the lis by the Board, the same continues to pend. I, prima facie, see no reason as to why a party should be held to be precluded to rely on additional evidence which, according to it, has a bearing on the main issue that has arisen for a decision by the Board merely because the judgment is reserved, as observed by the Deputy Registrar. The bonafide or otherwise of the applicant has to be tested by the Board while it considers the petition and it is entirely the discretion of the Board to accept or to reject the prayer for tendering additional evidence. It has not been demonstrated before me that no miscellaneous petition could be filed in terms of the extant statutory provisions once judgment is reserved by the Board. It is true that in terms of Rule 27(2) of the Rules the Deputy Registrar is empowered to decide all questions arising out of scrutiny of appeals and applications before they are registered but, in my considered view, the scrutiny must be directed towards ascertaining whether the applications and the appeals are in the prescribed form or not and not towards the stage of filing such applications, which ought to fall for consideration of the Board. In the present case, the Deputy Registrar in returning the miscellaneous petition appears to have acted clearly beyond his jurisdiction.', (int) 58 => '<p>26. Although there is no specific prayer in the petition to quash the order of the Deputy Registrar dated 8.12.2009, the factual foundation therefor has been laid.', (int) 59 => '<p>27. Accordingly, I quash memo dated 8.12.2009 and direct the Deputy Registrar to register the miscellaneous petition dated 23.11.2009 if it is otherwise in form. Once registered, the same shall be placed before the Board for its consideration according to law. In the event the miscellaneous petition does not deserve to be registered for reason(s) other than that assigned in the impugned memo, the same shall be communicated to the petitioners.', (int) 60 => '<p>28. I make it clear that the reasons assigned by me for quashing the impugned memo are not intended to influence the Board in any manner. It shall be free to decide the point of maintainability of the miscellaneous petition on the basis of its own understanding of the legal principles.', (int) 61 => '<p>29. There shall be no order as to costs.', (int) 62 => '<p>30. Urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.', (int) 63 => '<p>Later :', (int) 64 => '<p>Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 65 $i = (int) 64include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Prayer for stay of operation of the order, made on behalf of the respondents 3 to 7, is considered and rejected.