Sukha Mal v. Prakash Shesh Mal Jain — 1997 DIGILAW 553 (GUJ)

JUDGMENT : S.D. Dave, J. Rule. Ld. counsel Mr. Dushyant Dave for Ld. counsel Mr. P.P Banaji, waives service of rule for Respondent No.1. 2. The orders sought to be challenged in the Appeal are the Orders dated 24th August, 1993. The Appeal was required to be presented on/or before 24th November 1993. The Appeal has been filed on 22nd July 1996. The Appellants/Applicants urge that, regard being had to the provisions contained in Section 5 of the Limitation Act, 1963, and in Rule 121 of the Trade & Merchandise Marks Rules (1959), the delay in filing the Appeal requires to be condoned and the Appeal requires to be admitted. The cause pleaded is the "gross misdemeanour and inaction" on the part of the Trade Mark Agents working as the Agents of the Appellants/Applicants under Section 123 of the. Trade & Merchandise Marks Act, 1958. The challenge posed by the Respondents/opponents is that, the delay has not been explained by pointing out sufficient cause either in law or in facts, and that, no case has been made out for condoning the delay. 3. The Applicants before me in this application for condonation of delay are the Appellants. The Applicant No.1 used to trade under the name & style of M/s. Vipul International at Surat, who was granted registration for its Trade Mark " VIPUL " under No. 419705 with effect from 27-3-1994, in respect of and in relation to "SAREES" included in Class-24, on the basis of the use of the Trade Mark, since March 1980. A Rectification Application came to be filed by the Respondent No.1 before the Respondent No.2, i.e. The Assistant Registrar of Trade Marks, Ahmedabad-9, on 4-11-1991. The Applicant No.1 had "filed the counter statement on 23-2- 1992. There after, the Respondent No.1 was required to file evidence in support of its Rectification Application but did not file the evidence in support of their petition and prayed for time on the ground of settlement. On 20th December 1992, an interlocutory petition came to be filed by the Respondent No.1 before the Respondent No.2 for filing the evidence in support of their Rectification Application. The evidence came to be taken and/or recorded on March 31, 1993, and the matter came to be placed and fixed for hearing on 20th August, 1993. The Respondent No.2 passed ex-parse orders on August 24, 1993. The evidence came to be taken and/or recorded on March 31, 1993, and the matter came to be placed and fixed for hearing on 20th August, 1993. The Respondent No.2 passed ex-parse orders on August 24, 1993. According to the Applicants, they were not aware about the said orders or even the date of hearing fixed by the Respondent No.1 because of the negligence on the part of the Trade Mark Attorney of the Applicants/Appellants, namely M/s. Mangla Registration Services, New Delhi. According to the Applicants, the Respondent No.2 had heard, the matter ex parte and passed orders against the Applicants/Appellants on August 24, 1993, but according to the Applicants, they came to know about this order only when they received a notice by advocates for the Respondent No.1 M/S. Gordhandas & Fozdar dated December 01, 1995. According to the Applicants/Appellants, after the receipt of the said notice, they had tried to contact their Trade Mark Attorney at New Delhi, but had failed to establish any contact with them and ultimately one Shri Anilbhai of the Applicants was required to rush down to Delhi to contact the said Attorney i.e. M/s Mangla Registration Services, but the Applicants had found that the. said Trade Mark Attorney were not taking any interest in the matter, and later on they were obliged to have the services of another counsel and Trade Mark Attorney M/s M.P.Mirchandani & Co., and they had also tried to contact M/s Mangla Registration Services at Delhi but that, they had failed to evoke any response. It is further the case of the Applicants that, as there was no response from M/s Mangla Registration Services, M/s M.P. Mirchandani & Co., were required to reply the notice of the advocates for the Respondent No.1 on May 28, 1996 and had informed the that, the Applicants have filed Rectification Application for removal of the Trade Mark registered in favour of the Respondent No.1. The Applicants, according to their case, had also applied for the inspection of the files at the Trade Mark Registry, Ahmedabad, but the files were not available at Ahmedabad branch, and therefore, the Applicants were required to inquire at Trade Mark Registry at Bombay or at Delhi. It is the case of the Applicants that, meanwhile they were served with an order of temporary injunction passed in Civil Suit No. 3066 of 1996 dated July 11, 1996. It is the case of the Applicants that, meanwhile they were served with an order of temporary injunction passed in Civil Suit No. 3066 of 1996 dated July 11, 1996. It is also the case of the Applicants that, they have filed the necessary application to obtain the certified copy of the orders from Trade Mark Registry, Ahmedabad, but till the date of the filing of the application for the Condonation of Delay, the Applicants have not received the same from the office of the Respondent No.2. Thus , it is the case of the Applicants that, there has been a gross misdemeanour and gross inaction on the part of their Attorney, namely M/s. Mangla Registration Services Private Limited and that, because of such gross misdemeanour and gross inaction on the part of their Attorney, they should not be made to suffer. 4. This case of the applicants came to be challenged by the Respondents by filing the affidavit-in-reply of one Shri Prakash S. Jain of Bombay. The Respondent No.1 has said that, their rights in the matter have already been crystallised and that, in fact not only one but there are three orders of the Assistant Registrar of Trade Marks passed against the Applicants and that, they have remained unchallenged for a pretty long time of three years. It is urged that, no genuine and/or believable reasons have been sought to be made out and that therefore the delay remains unexplained and that,-instead of that, the Applicants have sought to create an excuse for their inaction and indolence by blaming the "so called Attorneys". The Respondent No.1 has further denied that the Applicants came to know of the said orders for the first time "when the papers and the proceedings" in the suit-filed by the 1st Respondent i.e. Suit No. 3066 of 1996 came to be served upon them. It is urged that the Applicants who were not bothered when the 1st Respondent served them with the advocate's notice cannot be allowed to take advantage of their indolence and/or deliberate inaction. It is on this basis that it has been submitted by the Opponents/Respondents that the Civil Application for Condonation of Delay requires to be dismissed with costs. 5. The entire case of the Applicants is based upon the reading of the provisions contained in Rule 121 of the Trade And Merchandise Marks Rules, 1959, which runs thus: "121. It is on this basis that it has been submitted by the Opponents/Respondents that the Civil Application for Condonation of Delay requires to be dismissed with costs. 5. The entire case of the Applicants is based upon the reading of the provisions contained in Rule 121 of the Trade And Merchandise Marks Rules, 1959, which runs thus: "121. Time for Appeal: An appeal to High Court from any decision of the Registrar under the Act or the rules shall be made within three months from the date of such decision or within such further time as the High Court may allow." 6. The case of the Applicants also rests upon the provisions contained in Section 5 of the Limitation Act, 1963, which runs thus: "5. Extension of prescribed period in certain cases: Any appeal or any application, other than an application under any of the provisions of Order 21 of the Code of Civil Procedure, 1908( 5 of 1908), may be admitted after the prescribed period of the appellant or the applicant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period. " 7. Thus upon a conjoint reading of Rule-121 of the Rules and Section 5 of the Act, it is clear that though the Appeal was required to be made within three months from the date of the orders or the decision sought to be challenged in the Appeal, the same could be filed within such further time as this Court may allow. It is also clear that the Appeal may be admitted after the prescribed period if the Appellants satisfies this Court that they had sufficient cause for not preferring the Appeal within such period. 8. It is not in dispute that the ex parte orders against the Applicants came to be pronounced by the Respondent No.1 on August 24, 1993. The simple copy of the orders dated August 24. 1993 would go to show that Shri Vinod Bhagat, Advocate, had appeared on behalf of the Applicants (for Rectification) i.e. the present Respondents/Opponents before me. But none had appeared on behalf of the Registered Proprietors of the Trade Mark, i.e. the Applicants herein. The simple copy of the orders dated August 24. 1993 would go to show that Shri Vinod Bhagat, Advocate, had appeared on behalf of the Applicants (for Rectification) i.e. the present Respondents/Opponents before me. But none had appeared on behalf of the Registered Proprietors of the Trade Mark, i.e. the Applicants herein. It is also clear that, later on the Review Petition came to be filed by the Trade Mark Agents M/s. Mangla Registration Services, New Delhi, but that also came to be disallowed and that, on the date of hearing of the Review Petition also nobody had remain present on behalf of the Applicants before the Respondent No.2. Thus it is clear that when the matter came to be heard & decided against the present Applicants vide the orders dated August 24, 1993, M/s. Mangla Registration Services, the Agents of the Applicants had preferred not to remain present. The same was the case when the Review Petition came to be decided and disposed of under the orders dated September 22, 1993. It shall have to be accepted therefore that, the Applicants were obliged to suffer the above said two ex-parte orders when their Agents M/s. Mangla Registration Services, New Delhi, had failed to remain present before the Respondent No.1 9. It is the case of the Applicants that they came to know regarding the adverse orders dated August 24, 1993, for the first time when they received the notice from Goerdhandas & Forzdar, Advocates & Solicitors dated 1st December 1995. The copy of the said notice has been made available by the Applicants to me, a reference to which would go to show that the Applicants were informed by the above said notice that there has been the orders against them dated August 24, 1993. Because of this notice from the Bombay based Solicitors, the Applicants were required to sent a communication to M/s. Mangla Registration Services, Patent, Trade Mark & Design Attorneys at Delhi dated December 06, 1995. Because of this notice from the Bombay based Solicitors, the Applicants were required to sent a communication to M/s. Mangla Registration Services, Patent, Trade Mark & Design Attorneys at Delhi dated December 06, 1995. This communication says that the Applicants have received the notice dated 1st December 1995 from M/s. Gordhandas & Forzdar, pertaining to the infringement of the Trade Mark "Vipul" and that the Applicants have been shocked to know the contents of the said letter/notice and to know further that, they have lost the Trade Mark `Vipul' though on all occasions the Applicants were assured by M/s. Mangla Registration Services by "politely saying that, there are possibilities to succeed in the cause." Lastly, the communication says that, now the matter has been assigned to M/s. M.P. Mirchandani & Co. Bombay. The letter asks for an explanation from M/s. Mangla Registration Services "immediately regarding the failure of the case before the. Respondent No.2." M/s. Mirchandani & Co. the Trade Mark, Patent & Attorneys at Bombay had sent two letters to the Applicants, requesting them to arrange for a meeting. M/s. M.P. Mirchandani & Co. had also sent a letter dated January 30, 1996, to M/s. Mangla Registration Services, requesting them to send the copies of the documentary evidence filed in the proceedings from 1976 onwards. There is a letter dated April 27, 1996 sent to M/s. Mirchandani & Co. by the Applicant saying that, they are contacting M/s. Mangla Registration Services, so that the relevant information/particulars can be provided to them. It is also said that, they had decided to depute a representative to collect the papers personally from M/s. Mangla Registration Services, and that, they shall be presented to M/s. M.P. Mirchandani & Co. as early as possible. 10. This exchange of letters would go to show that the Agents of the Applicants M/s Mangla Registration Services, New Delhi had failed to appear when the matter came to be decided ex parte and the orders adverse to the Applicants came to be pronounced on August 24, 1993. In the same way the Agents and the Applicants had failed to remain present when the Review Application presented by the Attorneys came to be heard and dismissed under the orders dated September 22, 1993. In the same way the Agents and the Applicants had failed to remain present when the Review Application presented by the Attorneys came to be heard and dismissed under the orders dated September 22, 1993. It appears that, the Applicants came to know of this fact situation only when they had received the notice from M/s. Gordhandas & Fozdar, Advocates & Solicitors dated December 01, 1995. It is clear that, after coming to know regarding the adverse orders by the said notice, the Applicants had applied for the inspection of the files at the Trade Mark Registry, Ahmedabad, but that, at the relevant time the files were not available at Ahmedabad branch. Ultimately the Applicants came to be served with the orders of temporary injunction pronounced in Civil Suit No. 3066 of 1996 dated July 11, 1996. There is a clear averment in the Application that, they have made the necessary application for obtaining the certified copy of the file from Trade Mark Registry, Ahmedabad, but till the date of the filing of the Civil Application for Condonation of Delay, the Applicants have not received the same from the Respondent No.2. 11. In my view, this all has happened because of the gross misdemeanour and gross in action on the part of M/s. Mangla Registration Services, who were the Agents of The Applicants. The provisions contained in Section 123 of the Trade and Merchandise Marks Act, 1958 say that, when any act other than the making of an affidavit, is required to be done before the Registrar by any person, the act may, subject to the rules made in this behalf, be done, instead of by that person himself, by a person duly authorised in the prescribed manner, or who is a person registered in the prescribed manner as a Trade Marks Agent. Thus, it appears that under the statutory provisions M/s. Mangla Registration Services were the Agents of the Applicants and were capable of doing those acts, which could have been done by the Applicants in the proceedings before the Respondent No. 2. They have indeed not remained present on different occasions and there is nothing on record to warrant a conclusion that later on they had intimated the Applicants regarding this development in the matter. They have indeed not remained present on different occasions and there is nothing on record to warrant a conclusion that later on they had intimated the Applicants regarding this development in the matter. It is indeed true that the Applicants are required to satisfy the Judicial Conscience that, there has been the misdemeanour or inaction on the part of their Agents. This has been done by the averments in the application on affidavit and by presenting the communications referred to above in support thereof. Nothing has been brought on record by the other side to satisfy me that, no reliance could be placed upon the said literature. Thus, the case requires to be recognised as a case of gross misdemeanour or inaction on the part of the Agents of the Applicants. 12. Ld. counsel Mr. Chagla appearing on behalf of the Applicants has placed reliance upon the Supreme Court. Pronouncement in Rafiq and another, Appellants v. Munshilal and another, Respondents, A.I.R. 1981, S.C. 1400. This decision recognises certain aspects involved in the present day adversary legal system and says that, when the party has selected his advocate, briefed him and paid his fees, can remain supremely confident that his lawyer will look after his interest. The Supreme Court pronouncement proceeds to rule that, such an innocent party who has done every-thing in his power and expected of him, should not suffer for the inaction. deliberate omission or misdemeanour of his counsel. Ld. counsel Mr. Chagla has also placed reliance upon the Supreme Court pronouncement in the case of State of Haryana v. Chandra Mani and others, (1996) 3 S.C.C. 132 . It was indeed a case of the State's delay in filing the appeal. The Supreme Court has said that the Court should decide the matters on merits unless the case is hopelessly without merit. It is made clear that, sufficient cause should be considered with pragmatism in justice-oriented manner. The say of the Supreme Court can be reproduced thus: "...The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detention of sufficient cause for explaining every days's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the state vis-a-vis private litigant could be laid to prove strict standards of sufficient cause." 13. The reliance is also placed by Ld. counsel Mr. Chagla lastly on Supreme Court pronouncement in Collector, Land Acquisition, Anantnag and another, Appellants v. Mst. Katiji and others, Respondents, AIR 1987 S.C. 1353 . The Apex Court has made it clear that, while examining the question regarding the condonation of delay under Section 5 of the Limitation Act, 1963, the Courts should adopt a liberal approach. It has been pointed out that, ordinarily a litigant does not stand to benefit by lodging an appeal late and that, refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. It is pointed out that, against this, when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 14. Ld. counsel Mr. Dushyant Dave, appearing on behalf of the Opponents has firstly pressed in service the Supreme Court decision in Ramlal and others v. Rewa Coal Fields Ltd., AIR 1962 S.C. 361 . This pronouncement of the Supreme Court makes it clear that, while construing the provisions contained in Section 5 of the Limitation Act. 1908, it would be relevant to bear-in-mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. The other consideration which cannot be ignored is that, if sufficient cause for excusing delay is shown, discretion is given to the Court to con-lone delay. It is emphasised that, even after sufficient cause has been shown a party s not entitled to the condonation of delay in question as a matter of right and that, his aspect of the matter naturally introduces the consideration of all relevant facts. It is emphasised that, even after sufficient cause has been shown a party s not entitled to the condonation of delay in question as a matter of right and that, his aspect of the matter naturally introduces the consideration of all relevant facts. ('he Supreme Court pronouncement in Mata Din v. A. Narayanan, A.I.R. 1970, S.C. 953, says that, mistake of a counsel will not in every case by itself be sufficient ;round to condone the delay. But the same decision further recognises that, when here was the delay in filing the appeal due to the earlier filing of appeal in the wrong Drum on the mistaken advice of the counsel and when there was nothing to show at the error of counsel was tainted by any mala fide move, the Court would be justified in extending time and condoning the delay. The Supreme Court pronouncement i G. Ramegowda, Major etc. v. The Special Land Acquisition Officer, Bangalore, A.I.R. 988 S.C. 897 says that, if there is negligence deliberate or gross inaction or lack of Ana fides on the part of the party or its counsel, there is no reason why the opposite de should be exposed to a time barred appeal. But this very decision says that, each Lse will have to be considered on the particularities of its own special facts and the ,pression "sufficient cause" in Section 5 must receive a liberal construction so as to substantial justice and generally the delay in preferring appeals are required to condoned in the interest of justice, where no gross negligence or deliberate anvil or lack of bona fides is imputable to the party seeking condonation of the delay. The Government of India, Appellant v. The Citadel Fine Pharmaceuticals, Madras and others, etc. Respondents, A.I.R. 1989 S.C. 1771 it has been said that in the absence any period of limitation it is settled that every authority is to exercise the power thin a reasonable period, and what would be the reasonable period would depend on the facts of each case. 15. The decision of the Supreme Court last in line has been pressed in service by Ld. Ansel Mr. 15. The decision of the Supreme Court last in line has been pressed in service by Ld. Ansel Mr. Dushyant Dave with a view to urge that, at the most, it would be reason to condone the delay of a period of not exceeding more than three months, beise that is the period provided under the Rules for filing the appeal. 16. There is a Caution Notice published in Times of India, Bombay, dated January 1995. The reliance has been placed upon this notice by Ld. counsel Mr. Dushyant with a view to urge that, when the above said Caution Notice came to be issued under the signature of M/s M.L. Mangla of Mangla Registration Services, New hi, the Applicants atleast should have come to know that, their trade mark is a reject matter before the Registering authorities. But this Caution Notice also would be create an impression that the Applicants attorney, i.e. Mr. Mangla was taking of the situation and that their Trade Mark Registration was being safeguarded in the proceedings. At any rate it would not put the Applicants to the notice that they have suffered adverse orders due to the inaction, omission or misdemeanour on the part of their Attorneys. 17. The rest of the Supreme Court decisions have been replied upon with a view to urge that the inaction or misdemeanour on the part of the counsel alone or simpliciter would not amount to a 'sufficient cause' within the meaning of Section 5 of the Limitation Act 1963, and the Courts are required to inquire into the relevant aspects of the matters also. But when the facts of the case on hand are studied, in view of the say of the Supreme Court, it appears that the Applicants have been able to establish "sufficient cause" for the condonation of the delay. Undisputedly the Agents of the Applicants who used to represent the cause of the Applicants before the Respondent No.2 had preferred to remain absent on all relevant occasions and there is nothing on record to show that, ultimately this was brought to the notice of the Applicants. On the contrary, it appears that, the Applicants came to know of the adverse orders against them only when they had received the notice dated December 01, 1995. On the contrary, it appears that, the Applicants came to know of the adverse orders against them only when they had received the notice dated December 01, 1995. Thereafter, the Applicants were trying to remedy the situation and had been active in soliciting the service of other Trade Mark Attorney and were diligent enough to see that, ultimately the necessary files and papers are obtained from M/s. Mangla Registration Services and are handed over to their Trade Mark Attorneys at Bombay, so that the needful could be done. From this, it is difficult to infer lack of bona fides, gross negligence or deliberate inaction on the part of the Applicants. 18. More over at this juncture it is not possible for me to say that the case of the Applicants is devoid of merits, or is hopelessly bad and to conclude that, no useful purpose is going to be served by condoning the delay and admitting the Appeal. An unusually long delay appears to have been caused, solely because of the inaction and misdemeanour on the part of the Attorneys and not due to any deliberate inaction on the part of the Applicants. The conduct on the part of the Applicants after the knowledge of the Order adverse to them, in immediately calling for the explanation from the Attorneys and in entrusting the matter to another Attorney, would not warrant a conclusion that, Applicant either in facts or in law require to be characterised as inactive, negligent or lacking in bone fides. At no point of time they seem to have abandoned the cause which they were vigorously pursuing and was resting in the hands of their Attorneys. This would necessarily lead me to the conclusion that the delay in question requires to be condoned. 19. In view of this, in my opinion, the present Civil Application requires to be allowed and the delay requires to be condoned, and the Rule requires to be made absolute. I order accordingly Rule. made absolute. No costs.