S. Usha, Member (T)

1. The appeal is arising out of the order dated 17.10.2007 passed by the Deputy Registrar of Trade Marks disallowing the opposition No. MAS-2659 and allowing the application No. 402886 in class 5 to proceed for registration.

2. The instant application is to condone the delay of 29 days in preferring the appeal under Sub-section (1) of Section 91 of the Trade Marks Act, 1999 (in short the). The appellant herein had filed the appeal after a delay of 29 days on the ground that the appellants were based in Mumbai and it took some time to collect documents and to engage a new counsel. The delay was, therefore, neither wilful nor wanton but due to the above stated reason. The respondents rights will not in any way be affected by allowing this application. Therefore, the unintentional delay be condoned.

3. The respondent No. 1 filed their counter to the application to condone delay denying all the averments made in the application. The respondent No. 1 vehemently opposed the application stating that there can be no delay in collecting the documents as the documents filed before the Registrar are only filed here along with the appeal. It has also not been stated as to when the counsel for the appellant received the brief from the erstwhile counsel and when the same was entrusted to the present counsel. No proof of evidence in support of the above averments is available on the record.

4. The application is liable to be dismissed in limine as the appellant has not given any sufficient cause for the delay. The appellant is only trying to prolong the process of registration by deliberately delaying the filing of the appeal. The appellant have no case on merits. No loss or prejudice will be caused to the appellant where as the respondent No. 1 will be put to serious loss and hardship by this delay. The application be, therefore, dismissed.

5. We have heard the matter on 18.02.2009 at Chennai. Shri Rajesh Ramanathan, learned Counsel appeared for the appellant and Shri A. Vijay Anand learned Counsel for the respondent No. 1.

6. The learned Counsel for the appellant submitted that the delay was due to the reason that the appellant was based in Mumbai and had to come down to Chennai to collect the papers from the erstwhile counsel and hand that over to the present counsel for preparing the appeal. The reason is bonafide and not with any malafide intentions. The counsel further submitted that by not condoning the delay the appellant would be put to serious loss as they have a good case on merits. He, therefore, prayed that the delay be condoned and the appeal be taken on record.

7. The learned Counsel for the respondent No. 1 submitted that the appellant has not given sufficient reason to condone the delay and for this reason alone the application has to be dismissed. The provisions of Section 91 of theprovide that the appeal cannot be admitted after the limitation period. He also submitted that the TM 5 - Notice of opposition was filed by the respondent No. 1 in person and that the reason that it took time for engaging a new counsel cannot be accepted. The counsel thus vehemently opposed the application to condone delay. The counsel for respondent No. 1 relied on two judgements of this Appellate Board in support of his contention - : 2006 (33) PTC 405 (IPAB) Kumar Dal Mills v. Bansi Lal Aggarwal and COD No. 03/2008 in S.R. No. 359/2007/TM-IPAB Dr. Reddys Laboratories Ltd. v. Win-Medicare Ltd. and Ors.

8. We have heard and considered the contentions of both the counsels. The provisions of Sub-section (1) of Section 91 provides that an appeal may be preferred within three months form the date on which the order or decision is communicated to the person preferring the appeal. Sub-section (2) prohibits admission of an appeal after the expiry of the limitation period specified in Sub-section (1). However, proviso to Sub-section (2) provides that an appeal may be admitted after expiry period, if the appellant satisfies the Appellate Board that there was a sufficient cause for not preferring the appeal in time. The courts have held the expression "sufficient cause" occurring in statutes in connection with the limitation should receive liberal construction to do substantial justice. In the case of Ramnath Sao @ Ramnath Sahu and Ors. : 2002 (3) SCC 195 , the Apex Court has laid down the following principles at para 11:

11. Thus it becomes plain that the expression, "sufficient cause" within the meaning of Section 5 of theor Order 22 Rule 9 of the code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be straight-jacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation, furnished should be the rule and refusal as exception more so when no negligence or inaction or want of bonafide can be imputed to the defaulting party. On the other hand, while considering the matter the court should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable point and facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effects of the order it is going to pass upon the parties either way.

9. In the case of Koninklijke Philips Electronics N.V. v. Kay Kay Home Appliances Pvt. Ltd., and Anr. : 2004 (29) PTC 601 (IPAB) this Appellate Board while considering an application for condonation of delay has observed at para 8 as under.

8. From the above principle laid down by the Apex Court, the legal position is : (1) the word sufficient cause should receive liberal construction to do substantial justice; (2) What is the sufficient cause Is a question of fact in a given circumstance of the case; (3) it is axiomatic that condonation of delay is the discretion of the court; (4) length of delay is no matter, but acceptability of the explanation is the only criterion; (5) the rules of limitation are not meant to destroy the rights of the parties, but they are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly; (6) if the explanation does not smack of malafides or it is put forth as part of the dilatory strategy, the court must show utmost consideration to the suitor; (7) if the delay was occasioned by the party deliberately to gain time, the court should not forget the opposite party altogether.

10. In the light of the above principles laid down, we are of the opinion that by considering the loss of the appellant in such delay and in the interest of justice the delay can be condoned.

11. On a bare perusal of the impugned order, we find that the marks are in respect of medicinal products in class 5, in such case we are of the view that the appellant can be given an opportunity to have the appeal heard on merits. The delay, however, cannot be condoned in the case on hand without imposing costs. As has been observed by the Apex Court in the case of N. Balakrishnan v. M Krishnamurthy 19998 (7) SCC 123, "while condoning the delay the court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the appellant the court shall compensate the opposite party of his loss".

12. We, therefore, are of the view that the delay can be condoned on payment of costs of Rs. 2000/- to the respondent No. 1 within three weeks from the date of receipt of this order and file the acknowledgement of remittance of costs in the Registry of this Appellate Board, failing which the petition shall stand dismissed. On receipt of the acknowledgement the Registry is directed to number the appeal.

13. COD No. 7/08 is allowed in the above terms.