JUDGMENT 1. Since common issue is involved in all these four petitions and since they are heard together, the same are being disposed off by this common judgment. 2. The petitioners have prayed for in all these four petitions for quashing and setting aside the impugned orders dated 20.01.2005 and 23.02.2007 passed by the Intellectual Property Appellate Board ('IPAB' for short) as being illegal, arbitrary, perverse and contrary to the provisions of the Trade and Merchandise Act, 1958 and also violative of Articles 14 & 19 (1) (g) of the Constitution of India. The petitioners have also prayed for stay against the implementation, operation and execution of the above impugned orders. 3. This Court has issued notice on 18.04.2007. The order of status-quo was passed on 27.04.2007. On 15.02.2008, parties were directed to complete their pleadings at the earliest and all four cognate matters were directed to be heard together. 4. All these four petitions are arising as a result of the orders dated 20.01.2005 and 23.02.2007 passed by IPAB while exercising the present jurisdiction of this Court under Section 100 of the Trademarks Act, 1999 in the rectification applications under Section 107 of the Trade & Merchandise Act, 1958 filed by the respondent No.3 as being illegal and without jurisdiction and also arbitrary, perverse and contrary to the provisions of the Trade & Merchandise Act, 1958. 5. The brief facts giving rise to the present petitions are that the petitioner, a proprietory concern, started business of manufacturing, marketing, selling and exporting various type of food eatables including the squash, juices, syrup and beverages, pickles and chutneys, canned fruits and vegetables in 1970 and obtained necessary license as required. The petitioner adopted and started using the trade mark PRIYA during the year 1974 in respect of the aforesaid fruits. The petitioner applied on 21.09.1979 for the registration of the trade mark PRIYA under No.353713 in respect of the goods squash, juices, syrup and beverages and the certificate of registration under the provisions of the Trade & Merchandise Act, 1958 came to be issued on 28.02.1983 granting rights of registration for sale in the State of Maharashtra and Gujarat. The petitioner applied on 21.09.1979 for the registration of the trade mark PRIYA under No.353713 in respect of the goods squash, juices, syrup and beverages and the certificate of registration under the provisions of the Trade & Merchandise Act, 1958 came to be issued on 28.02.1983 granting rights of registration for sale in the State of Maharashtra and Gujarat. The petitioner thereafter applied on 15.09.1980 for the registration of the trade mark PRIYA under No.366103B in respect of the goods pickles and chutneys and the certificate of registration thereof came to be issued on 31.03.1992, upon the dismissal of the opposition lodged by the respondent No.3. The petitioner thereafter applied on 27.10.1980 for the registration of the trade mark PRIYA under No.367909 B and under No. 367910 B in respect of canned fruits and vegetables included in Class 29 and in respect of Tomato Ketchup and Cornflakes included in Class 30 and the certificates of registration thereof came to be issued on 30.04.1992 and 30.10.1990 respectively, upon the dismissal of the opposition lodged by the respondent No.3. 6. The petitioner issued cease and desist notice to the respondent No.3 from using the trade mark PRIYA. The petitioner thereafter appointed one M/s. Subashree Enterprises as the distributor for his products to be marketed in Southern States and for the export on 15.11.1993. The respondent No.3 acknowledged the cease and desist notice of the petitioner and thereafter sought time for sending a detailed reply on 10.01.1994, but no reply was received by the petitioner. The petitioner sent further reminder on 08.03.1994 to the respondent No.3 which was also not replied by the respondent No.3. 7. The petitioner thereafter filed suit for infringement of trade mark against the respondent No.3 being Civil Suit No. 608 of 1994 on 23.05.1994 before the High Court of Judicature at Madras and obtained an ex-parte ad-interim injunction against the use of the trade mark PRIYA by the respondent No.3. The said suit is still pending for adjudication before the Madras High Court. 8. An advertisement of the trade mark PRIYA in respect of pickles, jam, mango pulp etc. was inserted for the petitioner in 'The Hindu' daily on 01.06.1994 wherein it was declared that the petitioner has appointed M/s. Subashree Enterprises as the Distributor. The said suit is still pending for adjudication before the Madras High Court. 8. An advertisement of the trade mark PRIYA in respect of pickles, jam, mango pulp etc. was inserted for the petitioner in 'The Hindu' daily on 01.06.1994 wherein it was declared that the petitioner has appointed M/s. Subashree Enterprises as the Distributor. Based on this advertisement, the respondent No.3 moved an application before the Madras High Court for vacating ex-parte injunction granted by the Madras High Court in Civil Suit No.608 of 1994. The said application was granted and the injunction application filed by the petitioner was rejected by the Madras High Court on 07.09.1994. 9. The respondent No.3 thereafter, on the basis of the advertisement dated 01.06.1994 in 'The Hindu' daily published for the petitioner, filed Civil Suit No.2055 of 1995 on 29.11.1995 against the petitioner for the infringement of the copyright and passing off in the Madras High Court against the use of the trade mark PRIYA in respect of pickles and chutneys by the petitioner. The said suit is pending adjudication before the Madras High Court. The Madras High Court was pleased to dismiss the injunction application of the respondent No.3 on 22.08.1996 wherein it is held that the petitioner has filed documentary evidences of user of the trade mark PRIYA not of earlier years but only from the year of 1993 and both the parties have adopted and using the mark independently. 10. The respondent No.3 thereafter filed criminal complaint against the petitioner in 1996 being Calendar Case No.227 of 1996 before the Additional Metropolitan Magistrate, Chennai. In the said criminal case, one C.V.S. Jaganatha Rao, Senior Law Officer of the respondent No.3 had categorically admitted the fact that the petitioner has inserted advertisement of the trade mark PRIYA in The Hindu daily on 01.06.1994. The said criminal case came to be decided in favour of the petitioner and against the order of the dismissal, the respondent No.3 filed Criminal Misc. Petition No.9896 of 2004 before the Madras High Court which is still pending. 11. The said criminal case came to be decided in favour of the petitioner and against the order of the dismissal, the respondent No.3 filed Criminal Misc. Petition No.9896 of 2004 before the Madras High Court which is still pending. 11. The respondent No.3 thereafter filed four different applications for rectification being rectification applications No.1 to 4 of 1999 on 16.03.1999 purportedly under Section 107 of the Trade and Merchandise Act, 1958 because of the fact that Civil Suit No.608 of 1994 of the petitioner and the Civil Suit No.2055 of 1995 of the respondent No.3 against the present petitioner were pending for adjudication before the Madras High Court, for the cancellation / removal of the registered trade mark PRIYA of the petitioner. The petitioner filed his reply / counter statement on 19.07.2000 before this Court and opposed all the four applications for rectification of the respondent No.3 and thereby raised objections as to maintainability of rectification applications under Section 56 of the Act and also on the ground that all these applications are not tenable in view of the scheme envisaged under Section 111 of the Act and also on the ground that the applications are barred by the law of limitation. 12. Upon new enactment, the Trade and Merchandise Marks Act, 1958 came to be repealed on 15.09.2003 and the Trade Marks Act, 1999 came into force and as such, as provided under Section 100 of the new Act, this Court passed an order on 24.02.2003 transferring all the cases of appeals against the order of decisions of the Registrar of trade marks and all the cases pertaining to rectification of register pending in this Court, including the rectification application Nos.1 to 4 of 1999 to the Appellate Board so as to be decided by the Appellate Board denovo or from the stage it was so transferred. The Appellate Board, without passing any order as to whether the Appellate Board is deciding the transferred applications, denovo or from the stage it was so transferred by this Court, straightway fixed the final hearing of all these transferred applications on 27.07.2004 which was adjourned to 30.09.2004 and thereafter 21.12.2004. On 21.12.2004, the Appellate Board heard the parties finally in all four transferred applications. The petitioner raised the preliminary objection as to maintainability of all these applications for rectification under Section 107 of the Act. On 21.12.2004, the Appellate Board heard the parties finally in all four transferred applications. The petitioner raised the preliminary objection as to maintainability of all these applications for rectification under Section 107 of the Act. The petitioner further submitted that till the date of transfer, neither parties have filed their respective evidences in the matters. The respondent No.3, though filed all these applications for rectification of four registered trade marks of the petitioner as provided under Section 56 of the Act, at the hearing, confined to only one ground of removal of all these registered trade marks on account of non-user as provided under Section 46 (1) (b) of the Trade & Merchandise Act, 1958. The Appellate Board heard the arguments only for the removal of trade marks under Section 46 of the Act and reserved the order. Since the respondent No.3 confined to only one ground under Section 46 of the Act only, the petitioner was required to submit evidence of continuous user of the trade mark PRIYA and hence, served copy of Misc. Petition with documentary evidences of the use of the trade mark PRIYA from the advocate of the respondent No.3 on 21.12.2004. The said advocate objected by putting endorsement strong objection as filed after hearing is over . The petitioner sent his person to the office of the Appellate Board to reach at the closing hours of the office on 27.12.2004 and he was asked to come on the next day and hence, he visited next day in the morning, but the concerned Officer refused to acknowledge the Misc. Petition with the documentary evidence and as such, the petitioner was constrained to send the same by post. 13. The Appellate Board while exercising the transferred jurisdiction of the High Court, passed a common order on 20.01.2005 in transferred applications and thereby directed the Registrar of Trade marks to remove the entry of all these four registered trade marks of the petitioner on the ground of non-user though the respondent No.3 had filed all these rectification applications as provided under Section 56 of the Act and not for the removal on the ground of non-user. The Appellate Board while passing the impugned order did not even consider the Misc. Petition as well as documentary evidences of continuous user so placed on record. 14. The Appellate Board while passing the impugned order did not even consider the Misc. Petition as well as documentary evidences of continuous user so placed on record. 14. The petitioner thereafter filed Review Petition Nos.1 to 4 of 2005 in Transfer Application Nos.68 to 71 of 2004 on 02.02.2005. Along with the review petitions, the petitioner filed Misc. Petition No.26 to 29 of 2005 for stay of the impugned order dated 20.01.2005. The Appellate Board, vide its order dated 23.02.2007 dismissed all these Misc. Petitions for stay as well as review petitions of the petitioner. 15. In the above background of the matters, the present petitions are filed by the petitioner challenging the aforesaid two orders passed by the Appellate Board. 16. Mr. Mihir Joshi, learned Senior Counsel appearing with Mr. Y. J. Jasani, learned advocate appearing for the petitioner has submitted that the respondent No.3 filed Rectification Application Nos.1 to 4 of 1999 before this Court on 16.03.1999 by invoking the provisions of Section 107 of the Trade & Merchandise Act, 1958. The application for rectification of a registered trade mark is to be made either before the Registrar of Trade Marks or before the High Court if no dispute concerning the trade mark is pending or upon pendency of the suit concerning the said trade mark in any Court and if the plaintiff or defendant pleads invalidity of such registered trade mark, to the High Court and not to the Registrar of Trade Marks, on the ground that the entry relating to the registration made in the Register without sufficient cause or such entry is wrongly remaining on the Register. The rectification application under Section 56 of the Act is in the nature of challenging the validity of the entry of registration made on the Register while the application for the removal of the entry relating to a registered trade mark from the Register under Section 46 of the Act is not on the ground that the original entry of registration was made without sufficient cause or such entry is wrongly remaining on the Register, but on the ground that though the original entry of registration was made in accordance with law and also lawfully remaining on the Register though such registered trade mark is liable to be removed from the Register on the ground that (1) the trade mark was registered without any bonafide intention on the part of the applicant for registration that it should be used in relation to those goods by him and in fact, there had been no bonafide use of such registered trade mark in relation to the goods by any proprietor thereof upto a date one month before the date of application for removal and (2) that upto a date one month before the date of application for removal, a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no bonafide use thereof by the proprietor in relation to the goods so covered under registration. He has, therefore, submitted that a bare perusal of all these rectification applications and more particularly, the pleadings made in paragraph 17 and 18, reveal that all these applications for rectification are only on the grounds available under Section 56 of the Act and not for the removal of registered trade marks of the present petitioner under the provisions of Section 46 of the Act. He has, therefore, submitted that the petitioner has, atleast from 01.06.1994 started selling Priya pickles, jams, mango pickles etc. through appointment of Subashree Enterprises as the authorized sole distributors which came to the knowledge of the respondent No.3 from an advertisement in The Hindu daily dated 01.06.1994. He has, therefore, submitted that the petitioner has, atleast from 01.06.1994 started selling Priya pickles, jams, mango pickles etc. through appointment of Subashree Enterprises as the authorized sole distributors which came to the knowledge of the respondent No.3 from an advertisement in The Hindu daily dated 01.06.1994. The respondent No.3 had filed all these applications on 16.03.1999 by invoking the jurisdiction under Section 107 of the Act before this Court and on the date of filing of these rectification applications, the stipulated period of five years and one month under Section 46 of the Act was not lapsed and, therefore, all these applications of the respondent No.3 before this Court were for the rectification of the Register under Section 56 of the Act and not for the removal of the registered trade marks under Section 46 of the Act. He has further submitted that in view of the provisions of Section 100 of the Trade Marks Act, 1999, this Court transferred all these four rectification applications under Section 56 of the Act to the Appellate Board, for deciding the same denovo or from the stage it was so transferred. At the stage of hearing of all these transferred applications, the learned Counsel appearing for the respondent No.3 confined his arguments with regard to the requirement of Section 46 (1) (b) of the Act i.e. non-user of the registered trade marks. The Appellate Board found it unnecessary to extract the other pleas raised by the respondent in all these rectification applications. The Appellate Board, however, lost sight and erred in deciding and granting all these applications, while exercising its jurisdiction of this Court under Section 107 of the Act on the ground of non-user contemplated under Section 46 (1) (b) of the Act. 17. Mr. Joshi has further submitted that the Appellate Board was supposed to exercise the transferred jurisdiction of this Court under Section 100 of the Act and it was not discharging the function of quasi-judicial Tribunal or an Executive Tribunal or as original jurisdiction under Section 125 of the Act and hence, it ought to have considered the issue as to tenability of all these rectification applications and also the issue as to applicability of the limitation in such transferred applications. In support of this submission, he relied on the Appellate Board's decision in Transferred Application No.147 of 2004 (Gurdeep Kaur & Ors. In support of this submission, he relied on the Appellate Board's decision in Transferred Application No.147 of 2004 (Gurdeep Kaur & Ors. V/s. Navrattan Singh & Ors.) 2005 (31) PTC 306 wherein the petition was held to be barred by limitation. In the present case also, all these applications are on the face of the record, barred by limitation and hence, all these applications should have been rejected by the Appellate Board. 18. Mr. Joshi has further submitted that the Appellate Board should have also decided the issue regarding tenability of the rectification applications. The applications are in violation of the provisions contained in Section 111 of the Act and they are also not tenable in view of the limitation prescribed under the Act. For this purpose, he relied on the decision of this Court in the case of Patel Field Marshal Agencies V/s. P. M. Diesels Ltd., 1998 PTC 463. 19. Mr. Joshi has further submitted that because of the fact of the prior pending suits between the parties concerning the said trade mark PRIYA of the petitioner, in the Madras Court, the impugned rectification applications were being filed under Section 107 of the Trade & Merchandise Act, 1958 before this Court and, therefore, the Appellate Board while exercising the transferred jurisdiction of this Court, ought to have considered the Scheme, object and purport of the provisions of Section 107, 108 & 111 of the Act of 1958 while passing the impugned order dated 20.01.2005. He has further submitted that looking to the Scheme of Section 107, 108 & 111 of the Act of 1958, unless the respondent No.3 raises the plea as to invalidity of the registered trade mark of the petitioner and if such plea is raised and prima facie found tenable by the Court, trying the suit and until such issue as to invalidity of the petitioner's registered trade mark is framed, it is not open for the respondent No.3 to file the rectification application independently in this Court and as such, the Appellate Board ought to have held that all these four rectification applications filed under Section 107 of the Act are not maintainable and, therefore, the impugned order requires to be quashed and set aside. 20. Mr. 20. Mr. Joshi has further submitted that it is the admission on the part of the respondent No.3 as to the fact that the petitioner had used the trade mark PRIYA in respect of pickles, jams, mango pickles etc. by inserting advertisement in The Hindu paper dated 01.06.1994 and appointed one M/s. Subashree Enterprises to export the same. In view of this admission on the part of the respondent No.3, the rectification application Nos.1 to 4 of 1999 filed on 16.03.1999 are even otherwise not maintainable as per the time stipulated in Section 46 (1) (b) of the Trade & Merchandise Act, 1958. The time prescribed for filing the application for rectification under Section 46 (1) (b) of the Act is of the continuous period of five years or longer has elapsed prior to the date one month before the date of the rectification application, during which the trade mark was registered and during which there was no bonafide use in relation to those goods by any proprietor thereof for the time being. The user of the trade mark PRIYA in respect of pickles and other request by the petitioner is expressly admitted by the respondent No.3 and, therefore, period of five years and one month was not complete as to the alleged non-user prior to the date of rectification application Nos.1 to 4 of 1999 on 16.03.1999. 21. Mr. Joshi has further submitted that perusal of the impugned order would disclose that the respondent No.3 though raised grounds under Section 56 of the Act for the rectification of the trade mark PRIYA of the petitioner, confined only one ground i.e. trade marks were not used for more than 5 years and one month prior to the filing of these applications as contemplated in Section 46 (1) (b) of the Act and, therefore, the finding arrived at by the learned Appellate Board on the basis of the prima facie observations of the Madras High Court in injunction application in a pending suit is erroneous and requires to be quashed and set aside. 22. Mr. Joshi has further submitted that even after hearing of the rectification application, certain additional documents were produced by the petitioner which were not taken into account. The Misc. Petitions filed were also not correctly appreciated and hence, the order dated 23.02.2007 is also erroneous and deserves to be quashed and set aside. 23. 22. Mr. Joshi has further submitted that even after hearing of the rectification application, certain additional documents were produced by the petitioner which were not taken into account. The Misc. Petitions filed were also not correctly appreciated and hence, the order dated 23.02.2007 is also erroneous and deserves to be quashed and set aside. 23. In support of his submissions, Mr. Joshi relied on the decision of the Hon'ble Supreme Court in the case of Hardie Trading Limited and another V/s. Addisons Paint and Chemicals Limited, AIR 2003 SC 3377 , wherein while considering the question as to whether the word 'use' in Section 46 (1) is limited, the Court observed that the phrase used in Section 46 is bonafide use thereof in relation to those goods. The phrase has been defined in Section 2 (2) (b) of the Act as to the use of a mark in relation to goods shall be construed as a reference to the use of the mark upon, or in any physical or in any other relation whatsoever; to such goods. The Court, therefore, held that this shows that the use may be other than physical. It may be in any other relation to the goods. Given this statutory meaning, the Court did not see any reason to limit the user to use on the goods or to sale of goods bearing the trademark. The Court has also referred to the Hermes Trade Mark, 1872 RPC 425, wherein the registered proprietor had inserted advertisements in which the trademark appeared in relation to the watches it manufactured in the annual trade publication. It was also in evidence that the registered proprietor placed an order for parts of the watches during the period of alleged non-use although the actual sale of the watches took place subsequently. In this factual background, the words 'other relation' in an identical statutory provision in the United Kingdom were construed to mean something other than actually being upon the goods or in physical relation to them that would cover the user of the mark, ................ for example, in advertisements, in invoices, in orders and so on. It was also said that the phrase in the course of trade must be wide enough to embrace the steps necessary for the production of the goods as well as the actual placing of them on the market. for example, in advertisements, in invoices, in orders and so on. It was also said that the phrase in the course of trade must be wide enough to embrace the steps necessary for the production of the goods as well as the actual placing of them on the market. It was held that even though there was no use of the mark upon or in physical relation to the goods, but it was used in other relation , i.e. to say in non physical use. 24. Mr. Joshi has also relied on the decision of the Hon'ble Supreme Court in the case of M/s. Thukral Mechanical Works V/s. P. M. Diesels Pvt. Ltd. & Anr., 2009 AIR SCW 913 wherein it is held that the right of a registered trade mark is not lost automatically on the expiry of five years and one month. It does not provide for a 'sun set' law. It has to be adjudicated upon. Whether the registered proprietor of the trade mark had taken recourse to trafficking or not must be determined in an appropriate proceeding. The principle of 'purchaser of a property has a duty to make enquiries', therefore, cannot apply in a case of this nature. So long as the right to assign a registered trade mark remains valid, once the same is validly assigned, the assignee derives the same right as that of the assignor in terms of the statute. A title to a trade mark derived on assignment as provided for under the Act cannot be equated with a defective title acquired in any other property as admittedly on the date of assignment, the right of the registered trade mark was not extinguished. The Court further held that Section 46 (1) (b) provides for a special remedy. As a person obtains a right on and from the date of registration and/or renewal thereof, he can ordinarily be deprived of his right unless it is shown that the assignment thereof by his holder was not bona fide one or had been made by way of camouflage. If the assignee has obtained assignment for bona fide use, he may not be fastened with any liability owing to non-user on the part of his predecessor. In other words, the mistake of the predecessor should not be visited with non-use of the present registered owner. If the assignee has obtained assignment for bona fide use, he may not be fastened with any liability owing to non-user on the part of his predecessor. In other words, the mistake of the predecessor should not be visited with non-use of the present registered owner. However, whether a use is for bona fide purpose would essentially be a question of fact. Whether Section 46 (1) (b) read with Section 48 of the Act would bring within its purview, not only a registered proprietor but also the proprietor who had otherwise acquired a right would depend upon the facts and circumstances of each case. 25. Considering all the legal and factual grounds raised by the petitioner before the Appellate Board were not properly appreciated and the authorities cited in support of the various submissions made by the petitioner were not dealt with in their true spirit and hence, both the orders passed by the Appellate Board requires to be quashed and set aside. 26. Mr. N. A. K. Sarma, learned Senior Counsel appearing with Mr. Jagannath Rao and Ms. Minoo Shah, learned advocates appearing for the respondent No.3 has submitted that the petitions filed by the petitioner are not maintainable either under Article 226 or 227 of the Constitution of India. He has submitted that the Trade Marks Act, 1999 does not confer on the High Court, power to exercise the jurisdiction under Article 226 with respect to the Appellate Board nor is there any provision in the Act for an appeal to the High Court. In respect of an order passed by the Appellate Board, it being a Tribunal under a Statute, remedy lies in Article 136 of the Constitution which is exercising only by the Supreme Court of India. He has further submitted that even otherwise, writ jurisdiction would lie before the Division Bench of the appropriate High Court. He has further submitted that the impugned orders were passed by the Appellate Board, Chennai and hence, the petitions should have been filed before the Chennai High Court and not before this Court. The petitions are barred by latches and delay. The impugned order is dated 20.01.2005 and the present petitions have been filed in April, 2007. The petitioner wants to unfairly take advantage of the goodwill and reputation of the trade mark PRIYA built by respondent No.3 during the last several years. The petitions are barred by latches and delay. The impugned order is dated 20.01.2005 and the present petitions have been filed in April, 2007. The petitioner wants to unfairly take advantage of the goodwill and reputation of the trade mark PRIYA built by respondent No.3 during the last several years. The impugned order dated 20.01.2005 of the Appellate Board does not prohibit or prevent the petitioner from continuing his business. On the face of the categorical findings of fact and observations recorded by the Appellate Board to the effect that the petitioner has failed to produce any material evidence to establish user of the trade mark PRIYA in the prescribed statutory period in respect of the goods to which the registration relates, the petitioner is not entitled to any relief in the present petitions. 27. Mr. Sarma has further submitted that in the proceedings before this Court, the petitioner filed numerous documents in support of his case and thus, had in fact availed himself of the right and opportunity to file evidence in support of his contentions. Either when the matter was pending before this Court or after the rectification petitions were transferred to the Appellate Board, the petitioner did not choose to file any additional material. It is, therefore, futile exercise on the part of the petitioner to raise the contention that no proper opportunity was given to file the documents before the Appellate Board. He has further submitted that it is settled law that the High Court is not a Court of appeal or revision over the orders or decisions of the Tribunal like the Appellate Board. There is nothing in the petition to show that the Appellate Board has acted without jurisdiction, or in violation of the principles of natural justice or impugned orders were ultra vires the Act. He has, therefore, submitted that this Court should not interfere in the orders passed by the Appellate Board. 28. Mr. Sarma has further submitted that the cease and desist notice from the petitioner was master minded by one Mr. Vasudevan who having acted as the respondent's Dealer in USA from 1988 to 1992 resorted to unethical practice by trying to get the trade mark PRIYA registered in the name of his Company in USA. Aggrieved by the respondent's discontinuance of business dealings with Mr. Vasudevan who having acted as the respondent's Dealer in USA from 1988 to 1992 resorted to unethical practice by trying to get the trade mark PRIYA registered in the name of his Company in USA. Aggrieved by the respondent's discontinuance of business dealings with Mr. Vasudevan, he sought out the petitioner at Baroda and hatched the plot to use the PRIYA mark for exporting the pickles from India to USA. However, as later on admitted by the petitioner, the said Vasudevan and his wife Mrs. V. Ambujam attempted to defraud the petitioner and as a result, the petitioner revoked the Power of Attorney granted in favour of the said Vasudevan in 1994. M/s. Subashree Enterprises appointed by the petitioner as the Distributor on 15.11.1993 was a proprietory concern of Mrs. Ambujam, wife of Mr. Vasudevan as sole proprietrix. Till such time in 1993, when Vasudevan got in touch with the petitioner, the later had not engaged itself in marking any of the petitioner's goods including pickles and chutneys in India using the trade mark PRIYA nor were they using the trade mark PRIYA for export. The petitioner if at all was exporting vegetables and fruits in bulk without any trade mark and in any case, PRIYA trade mark was not being used by the petitioner. After respondent No.3 brought its business dealings with Mr. Vasudevan an end on account of his illegal and unethical practices, the petitioner for a short while executed Power of Attorney in favour of Mr. Vasudevan, but soon his fraudulent activities came to be known by the petitioner as well. The petitioner, therefore, revoked the Power of Attorney and cancelled the distributorship of M/s. Subashree Enterprises in September 1994 itself. He has further submitted that the appointment of M/s. Subashree Enterprises as Distributor of the petitioner is merely a temporary sham transaction as has been explained in the rectification application. Mrs. Ambujam was the proprietix of M/s. Subashree Enterprises and the petitioner was directed to appoint M/s. Subashree Enterprises as Distributor so that Vasudevan would be able to succeed in his intention to appropriate the trade mark 'PRIYA'. Even as per petitioner's own admission, M/s. Subashree Enterprises itself applied for registration of trade mark 'PRIYA' at the back of the petitioner and on coming to know of the same, the petitioner revoked the Power of Attorney and Distributorship in favour of M/s. Subashree Enterprises. Even as per petitioner's own admission, M/s. Subashree Enterprises itself applied for registration of trade mark 'PRIYA' at the back of the petitioner and on coming to know of the same, the petitioner revoked the Power of Attorney and Distributorship in favour of M/s. Subashree Enterprises. Thus, M/s. Subashree Enterprises acted for its own interest and not for the petitioner. He has further submitted that no bill / invoice or label or other material to establish use of the trade mark by the petitioner or M/s. Subashree Enterprises at any time during the relevant period of five years and one month has been exhibited. The advertisement in the Hindu dated 01.06.1994 was caused to be published by M/s. Subashree Enterprises as part of its fraudulent attempt to use the trade mark 'PRIYA' and the respondent No.3 had not admitted at any point of time that any goods including pickles and chutneys bearing the trade mark 'PRIYA' were sold or marketed by the petitioner so as to indicate a connection in the course of trade between the petitioner and such goods. 29. Mr. Sarma has further submitted that while the rectification applications were pending before this Court, the procedure was governed by the Rules framed by this Court under the Trade & Merchandise Act, 1958. After the rectification applications were transferred to the Appellate Board, the applicable procedure was followed according to the Rules of procedure notified under the Trade Marks Act, 1999. The averments made by the petitioner in the petition, apart from being factually incorrect, also exposed incorrect exposition of law. On transfer of an appeal or rectification applications from the respective High Court to the Appellate Board, there was no requirement either under substantive law or the applicable Rules of procedure, for the Board to pass any specific order that it was proceeding with the matter from the stage it was transferred. Further, any doubts in this regard in the minds of the petitioner should have been removed when the Appellate Board fixed the final hearing of the four rectification applications and posted the same for hearing on 27.07.2004 and, thereafter, on 30.09.2004, before being finally heard on 21.12.2004. There was, therefore, no question of the petitioner having been taken by surprise, nor is there any room for a grievance that there was insufficient notice of final hearing. There was, therefore, no question of the petitioner having been taken by surprise, nor is there any room for a grievance that there was insufficient notice of final hearing. The petitioner was represented on all the dates fixed for hearing and on one occasion, at least the adjournment was granted at the request of the petitioner. 30. Mr. Sarma has further submitted that the petitioner has made an attempt to improve its case and introduced a new case by falsely claiming that certain contentions were raised during hearing and as if the Appellate Board had omitted to reflect the same in its order. The petitioner's contention that the application for rectification had been made under Section 56 of the Act alone and not under Section 46, is belied not only from the title at the top of the application but also by the specific averments in para 32 in each of the rectification applications. The Appellate Board heard the matter finally only after all the parties had ample time and opportunity for filing evidence in support of their case. Nothing prevented the petitioner from filing before this Court additional documents between July 2000 and December, 2003. Even after the rectification applications were transferred to the Appellate Board, despite the matter having been fixed for final hearing on different dates, the petitioner did not choose to file any further documents. If the petitioner was in possession of any more material in support of its case, it would not have withheld the same and it would have placed before the Tribunal at the earliest opportunity. Between 1999 and 2004, while the matter was pending before this Court and the Appellate Board, the petitioner did not file any application seeking leave to file additional documents. Mr. Rao has further submitted that the petitioner's contention that the application for removal of registered trade mark on the ground of non user, is not and cannot be filed before this Court as per the Scheme of the provisions of Section 107 of the Act is incorrect and has no basis in law. A plain reading of Sections 46 & 107 is sufficient to dispel the contentions in this regard. In fact, the Scheme of Section 107 of the Act is that application for rectification shall be made only to the High Court and not to the Registrar. A plain reading of Sections 46 & 107 is sufficient to dispel the contentions in this regard. In fact, the Scheme of Section 107 of the Act is that application for rectification shall be made only to the High Court and not to the Registrar. The respondent No.3 has not admitted anywhere in its pleading that the petitioner has used the trade mark 'PRIYA' by inserting the advertisement dated 01.06.1994. The case of the respondent No.3 is that the petitioner has not been using the trade mark 'PRIYA' in respect of its goods and particularly in respect of pickles and chutneys. 31. Mr. Sarma has further submitted that the petitioner was doing business by exporting in bulk canned vegetables, fruits, etc. An attempt was made to show as if the trade mark 'PRIYA' was being used by inserting the advertisement of 01.06.1994 due to the strategy of Mr. Vasudevan and his wife Mrs. V. Ambujam. Even the advertisement dated 01.06.1994 was published at the instance of Mrs. V. Ambujam at Madras and not by the petitioner. Except the solitary invoice dated 23.12.1993 which is in favour of M/s. Subashree Enterprises, there is no other material whatsoever to show that the petitioner had used this trade mark 'PRIYA' in respect of its goods. Neither before the Madras High Court nor before the Appellate Board, did the petitioner produce any material by way of advertisement, invoices, labels etc. to show its use of trade mark PRIYA. Only after the matter had been finally heard on 21.12.2004 and apprehending an adverse order, the petitioner suddenly mustered numerous tailor-made invoices and like material, to salvage its case. 32. Mr. Sarma has further submitted that the petitioner's averment that on 22.12.2004, the petitioner prepared four Misc. petitions in all the four rectification applications with necessary documents and that the copies of the said petitions with documents were served upon the respondent No.3, are utterly baseless and contrary to facts. The purported Misc. petitions are dated and signed on 28.12.2004 and the accompanying affidavit of Pathiath Babu Rajendran has been notarized at Baroda on 28.12.2004. These were actually received by post of respondent No.3 on 01.01.2005 at Hyderabad. The petitioner did not file any Misc. petitions on 21.12.2004 or 22.12.2004 nor did they serve any copy of the same on the Counsel for respondent No.3 on 22.12.2004. These were actually received by post of respondent No.3 on 01.01.2005 at Hyderabad. The petitioner did not file any Misc. petitions on 21.12.2004 or 22.12.2004 nor did they serve any copy of the same on the Counsel for respondent No.3 on 22.12.2004. No endorsement as has been alleged was made by Counsel for the respondent No.3 on 22.12.2004. It is, therefore, rightly observed by the Appellate Board in its order dated 20.01.2005 that once a Court or Tribunal has heard fully and orders have been reserved, no law or procedural rules permit or contemplate either party to lead evidence, that too by sending through post. 33. With regard to the petitioner's ground that the applications for rectification are barred by limitation, Mr. Sarma has submitted that by its very nature, the qualifying period to be reckoned with respect to an application for rectification under Section 46 (1) (b) is a continuous period of five years and one month immediately preceding the date of application. As such, the question of any limitation does not arise. Even otherwise, Section 32 and other sections of the Act clearly show that it is permissible to challenge the legality or validity of registration of a trade mark even if it had remained in the register for a period of three years. 34. Mr. Sarma has further submitted that the starting point of non-user with respect to Section 46 (1) (b) is a continuous period of at least 5 years upto a date one month before the date of application. The period of five years and one month reckoned is backwards i.e. from 16.02.1994 to 16.03.1999. The Appellate Board rightly noted that the latest invoice included by the petitioner was dated 04.02.1992. Reckoned from such date as well as the invoice dated 21.12.1993, it had been produced by the petitioner before the Madras High Court. The Appellate Board rightly recorded a finding that if the period of five years and one month is calculated either on the basis of sale voucher produced by the petitioner or the latest invoice produced by the respondent, the statutory period of five years and one month has lapsed much prior to the filing of these rectification petitions. 35. Mr. The Appellate Board rightly recorded a finding that if the period of five years and one month is calculated either on the basis of sale voucher produced by the petitioner or the latest invoice produced by the respondent, the statutory period of five years and one month has lapsed much prior to the filing of these rectification petitions. 35. Mr. Sarma has further submitted that the petitioner has not shown the existence of any special circumstances to explain the non-user, nor is it the petitioner's case that due to market conditions, sales did not take place. The petitioner has claimed to have remained in business all along and has claimed use of the trade mark during the relevant period. However, the petitioner was unable to establish actual user beyond 04.12.1992, being the date of the last invoice exhibited by the petitioner before the Appellate Board. It is settled law that merely because a mark has proceeded to registration pursuant to dismissal of the opposition proceedings, the mark does not became immune to challenge, especially under Section 46 (1) (b) of the Act. 36. Mr. Sarma further submitted that on and from 20.01.2005, there has been no interim stay or injunction. The impugned orders have already been given effect to and there is nothing to be stayed. Even if any of the four registered trade marks have not been removed from the trade mark Register, it could only be due to inaction on the part of the Trade Mark Registry in giving effect to the order of the Appellate Board. The petitioners should not be allowed to gain unfair advantage of the omissions on the part of the Trade Mark Registry. On the basis of finding recorded by the Appellate Board, Mr. Sarma has submitted that there is no material evidence on behalf of the petitioner to establish the use of the impugned marks and that the statutory period of five years and one month has elapsed much prior to the filing of these rectification petitions. He has, therefore, submitted that there is no justification whatsoever for grant of any relief to the petitioner and the petitions deserve to be dismissed. 37. In support of his submissions, Mr. He has, therefore, submitted that there is no justification whatsoever for grant of any relief to the petitioner and the petitions deserve to be dismissed. 37. In support of his submissions, Mr. Sarma relied on the decision of the Hon'ble Supreme Court in the case of American Home Products Corporation V/s. Mac Laboratories Private Limited, AIR 1986 SC 137 wherein it is held that Section 46 (1) (b) of the Trade & Merchandise Act, 1958 applies where for a continuous period of five years or longer from the date of registration of the trade mark, there has been no bonafide use thereof in relation to the goods in respect of which it is registered by any proprietor thereof for the time being. The distinction between Clause (a) and Clause (b) is that if the periods specified in Clause (b) has elapsed and during that period there has been no bonafide use of the trade mark, the fact that the Registered Proprietor had a bonafide intention to use the trade mark at the date of application for registration becomes immaterial and the trade mark is likely to be removed from the Register unless protected by Section 56 (3), while under Clause (a) where there had been a bonafide intention to use the trade mark in respect of which registration was sought, merely because the trade mark had not been used for a period shorter than five years from the date of its registration will not entitle any person to have the trade mark taken off the register. Thus, where there has been a non-user of the trade mark for a continuous period of 5 years and the application for taking off the trade mark from the register has been filed one month after the expiry of such period, the person seeking to have the trade mark removed from the register has only to prove such continuous non-user and has not to prove the lack of a bonafide intention on the part of the Registered Proprietor to use the trade mark the date of application for the registration. 38. Mr. 38. Mr. Sarma further relied on the decision of the Delhi High Court in the case of Fedders Lloyd Corporation Limited V/s. Fedders Corporation, 2005 (30) PTC 353 (DEL-DB) wherein while rejecting the plea that the appellants ought to have filed the applications for rectification within 3 years after 5 years and 1 month of non-use after the right to sue accrued in 1972, cannot be inferred from a perusal of the relevant provisions. Trade & Merchandise Act, 1958 is substantive and procedural in nature. Article 173 of the Limitation Act will not be applicable in case of applications to be filed for rectification of a trade mark on account of non-use under Section 46, as the provision itself contemplates a period after which such application can be filed. Limitation for instituting such application is provided in the provision of the said Act itself. 39. Based on the aforesaid factual matrix and the legal position, Mr. Sarma strongly urged that none of these petitions will have any merit or substance and hence, all the petitions deserve to be dismissed. 40. Having heard the learned advocates appearing for the parties and having considered the impugned orders passed by the Appellate Board in light of the rival submission made before the Court and also having kept in mind the relevant statutory provisions and decided case law on the subject, the Court is of the view that the orders passed by the Appellate Board do not call for any interference by this Court while exercising its writ jurisdiction under Article 226 or 227 of the Constitution of India. 41. The first contention raised on behalf of the petitioners is that the respondent No.3 has confined its challenge to the Registration of Trade Mark under Section 46 (1) (b) of the Act of 1958 and hence, the Rectification Applications before this Court are not maintainable. Such applications should have been filed before the Registrar. This contention, on the face of it, is not tenable. The respondent No.3 filed petitions before this Court for the removal / rectification of the register / removal of the Trade Mark from the Register under Sections 9, 11, 46 and 56 read with Sections 107 and 108 of the Act. Various contentions were raised in the rectification applications pertaining to the invalidity of registration of Trade Mark. The respondent No.3 filed petitions before this Court for the removal / rectification of the register / removal of the Trade Mark from the Register under Sections 9, 11, 46 and 56 read with Sections 107 and 108 of the Act. Various contentions were raised in the rectification applications pertaining to the invalidity of registration of Trade Mark. Simply because other contentions were not pressed at the time of hearing of petitions before the Appellate Board, it cannot be said that such petitions, when filed before this Court, were not maintainable. The Appellate Board has, therefore, rightly observed that though several grounds were raised in the petitions, the learned Counsel for the petitioner (present respondent No.3) confined with regard to the requirement of Section 46 (1) (b) of the Trade & Merchandise Act, 1958 i.e. non-user by the first respondent (present petitioner) of their registered mark for a period of five years and one month, prior to the filing of these petitions for rectification. The Appellate Board, therefore, deems it unnecessary to extract the other pleas raised in the said petitions. 42. While considering the present respondent No.3's challenge to registration of trade Mark under Section 46 (1) (b) of the Act, the Appellate Board at length discussed this issue in its order. The claim of the present respondent No.3 before the Appellate Board was that since the date of registration or the date of the claim of user in the application for registration of the present petitioner, there is absolutely no evidence for the use of the said mark 'PRIYA' by the present petitioner. The only document available before the Appellate Board is of the year 1993 and subsequent to the sale voucher dated 23.12.1993, there is no evidence that the present petitioner is in trade and his products are in the market. The documents produced by the present petitioner along with affidavit-in-reply were considered by the Appellate Board. It is further observed by the Appellate Board that even at the time of hearing of the said petitions, the present petitioner did not choose to produce any material evidencing the use of the impugned mark. The documents produced by the present petitioner along with affidavit-in-reply were considered by the Appellate Board. It is further observed by the Appellate Board that even at the time of hearing of the said petitions, the present petitioner did not choose to produce any material evidencing the use of the impugned mark. After proper appreciation of facts and evidence on record, the Appellate Board came to the conclusion that the present respondent No.3 had established the non-user of the impugned trade marks by the present petitioner, for the statutory period as contemplated under Section 46 (1) (b) of the Act, which consequently made the impugned marks liable to be removed from the Register by way of rectification. 43. An attempt was made on behalf of the petitioner before this Court to assail the order of the Appellate Board on the premises that the petitioner has, at least, from 01.06.1994 started selling priya pickles, jams, mango pickles etc. through appointment of Subashree Enterprises as the authorized sole distributors which came to the knowledge of the respondent No.3 from an advertisement in the Hindu daily dated 01.06.1994. Since the respondent No.3 filed all these rectification applications on 16.03.1999 by invoking the jurisdiction under Section 107 of the Act, the stipulated period of five years and one month under Section 46 (1) (b) of the Act was not lapsed. The Court, however, does not find much substance in this argument. Mr. Rao for the respondent No.3 ably demonstrated before the Court that the advertisement dated 01.06.1994 was published in Hindu at the behest of Mr. Vasudevan, who was acting as dealer of the respondent No.3 in U.S.A. from 1988 to 1992 and since he resorted to unethical practice by trying to get the trade mark 'PRIYA' registered in the name of his Company in U.S.A., the respondent No.3 discounted its business dealings with him. Thereafter, he sought the help of the petitioner at Baroda and hatched the plot to use the 'PRIYA' mark for exporting the pickles from India to U.S.A. When he and his wife made an attempt to defraud the petitioner, the petitioner revoked the Power of Attorney and cancelled the distributorship of Subashree Enterprises. Such a piece of evidence, therefore, cannot be used for frustrating the case of the respondent No.3 under Section 46 (1) (b) of the Act. Looking to these facts, the judgments relied upon by Mr. Such a piece of evidence, therefore, cannot be used for frustrating the case of the respondent No.3 under Section 46 (1) (b) of the Act. Looking to these facts, the judgments relied upon by Mr. Joshi for the petitioners would not render much assistance to the petitioners. 44. One more grievance was raised by the petitioners that the Appellate Board has not granted enough opportunity to the petitioners nor did make its stand clear as to whether it intends to start proceedings denovo or from the stage at which the proceedings were transferred by the High Court under Section 100 of the Act of 1999 to the Appellate Board. The record itself reveals that enough opportunities were granted which the petitioner did not avail. No provision is pointed out which requires the Appellate Board to make its stand clear before the parties about the transferred proceedings. 45. After completion of hearing, if the judgment is reserved, it is not obligatory on the part of the Appellate Board to consider the documents belatedly submitted by the parties. The review applications preferred by the petitioners were also rejected by a reasoned order. The Appellate Board rightly observed that the rectification petitions were filed by the present respondent No.3 along with documents before this Court in the year 1999 and the present petitioner filed his reply affidavit along with documents in 2000, when he chose to hold back those copies of invoices which he tried to file for consideration of the Appellate Board after conclusion of the hearing. Nothing prevented the present petitioners to file copies of those invoices at the time of filing reply affidavit. It is not his case that those invoices were not in his knowledge or possession. Even he had ample time to file thereafter. Thus, he has waived his right by his deliberate inaction or laches. 46. In view of the above discussion, this Court is of the view that the Appellate Board has given certain factual findings after proper appreciation of facts and evidence on record. This Court, while exercising its writ jurisdiction under Articles 226 and/or 227 of the Constitution of India, is very slow in disturbing such findings unless they are perverse or are arrived at without any application of mind. The plain reading of the orders under challenge does not give such impression. This Court, while exercising its writ jurisdiction under Articles 226 and/or 227 of the Constitution of India, is very slow in disturbing such findings unless they are perverse or are arrived at without any application of mind. The plain reading of the orders under challenge does not give such impression. On the contrary, they stood on a sound footing and are difficult to be interfered with. 47. All the four petitions are accordingly dismissed. Notice discharged. Interim relief stands vacated. No order as to costs. 48. On pronouncement of the judgment, Mr. Jasani, learned advocate appearing for the petitioner has requested the Court to stay the operation and implementation of this judgment and to continue the stay against the order passed by the Appellate Board which was granted during the pendency of the petitions. Ms. Minoo Shah, learned advocate appearing for the respondents has strongly objected to the said request. Having regard to the facts and circumstances of the case and considering the fact that firstly the Appellate Board and now this Court has decided the matter against the petitioner, the request made by the learned Counsel for the petitioner is rejected.