Bhagwandas G. Agrawal vs Brijwasi Dughdhalaya Private ...
2002 Latest Caselaw 741 Bom

JUDGMENT

S.A. Bobde, J.

1. This is a petition under Section 107 of the Trade and Merchandise Marks Act, 1958, hereinafter referred to as the "Act" read with Sections 46 and 56 thereof for rectification of the register. The petitioner seeks cancellation of the 1st respondent's trade marks granted as follows :--

Trade mark No.

Granted by Cert. dated.

346949

31-8-1982

346948

30-4-1983

346952

30-1-1987

368703

14-6-1991

Each of the above Trade Marks contain the word Brijwasi which is the cause of the dispute.

2. This petition for rectification is made directly to this Court on 27-3-2001. The only question before me is whether this petition is barred by limitation.

3. Mr. Kane, learned counsel for the respondent No. 1 submitted that in this case time must be reckoned from the date of knowledge of registration of the respondent No. 1's trade mark i.e. 1-4-1985. According to the learned counsel for

the respondent No. 1, the petitioner must be taken to have known the fact that the respondent No. 1 has the trade mark containing the word "BRIJWASI" registered in their name on 1-4-1985. Because, on this date the petitioner applied for return of the property to the Court of the Metropolitan Magistrate, 28th Court, Esplanade, Mumbai, in Criminal Complaint No. 7/I&R/1985 which was filed by the respondent No. 1 against the petitioner. In pursuance of that complaint, the police had raided the petitioner's premises on 27-3-1985 for seizure of falsified trade mark. That was the reason for the petitioner to make an application for release of the seized property.

4. The learned counsel for the petitioner disputes that time must be reckoned from that date. However, there is no dispute as to the fact that an application was made by the petitioner for return of the property to the aforesaid Criminal Court. There is also no dispute about the fact that in that application, the petitioner has clearly pleaded that the trade mark of the complainant (respondent No. 1) cannot be deemed to be valid within the meaning of Section 28 of the Act. In short, it is clear that the petitioner was aware that the respondent No. 1 claims to have registered trade mark which bore the name "BRIJWASI". There is also no dispute about the fact that in the said application, a reference is made to an application for rectification of the respondent No. 1's trade mark made by some other party and the fact that the petitioner referred to Section 87 of the Act which provides for rectification of the register.

5. Thus, one fact is clear that even though the petitioner had knowledge of the fact of registration of the respondent No. 1's trade mark in April 1985, they did not present a petition to this Court for rectification till 27-3-2001.

6. These facts would, however, entail dismissal of the petition only if the petition is barred by the Limitation Act, 1963. Mr. Kane relied on Section 3 of the Limitation Act, the relevant portion of which reads as follows :--

"3. Bar of limitation.--(1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence."

He further relied on Article 137 of the Limitation Act which reads as follows :--

"Description of suit Period of limitation Time from which period begins to run

137. Any other application for which no period of limitation is provided elsewhere in this Division." Three years When the right to apply accrues.

At this juncture, it is necessary to note that under the earlier Limitation Act, 1908, petitions were not considered to be applications and that is evident from Section 2(b) of the new Act which reads as follows :--

"2. Definitions.-- In this Act, unless the context otherwise requires,--

(a)....................................................

(b) "application" includes a petition."

Such a provision is absent in the old Act.

7. Relying on the aforesaid provision of the Limitation Act, the learned counsel for the respondent No. 1 submitted that the petition for rectification under Section 56 of the Act must be filed within three years when the right to apply accrues. In a case such as this, the right to apply for rectification can certainly be taken to be the date when a party gains knowledge of the registration of the trade mark. This position was not disputed.

8. Having regard to the aforesaid scheme, it is clear that the application for rectification under Section 56, which is treated as a petition under Rule 826 of the High Court (O. S. ) Rules, is governed by the provisions of the Limitation Act, 1963.

9. Mr. Kane, learned counsel for the respondent No. 1 pointed out that this question is no more res integra as far as this Court is concerned and there is a judgment to the effect that such a petition for rectification is governed by the Limitation Act, 1963. The learned counsel referred to an unreported judgment of a learned Single Judge of this Court (D.K. Deshmukh, J.) in Rakesh Kumar Gupta v. Goresh Domestic Appliances and Ors., (Misc. Petition No. 63 of 1994) decided on 24-1-2002, wherein the learned Single Judge has unequivocally held that Section 137 of the Limitation Act applies to an application or petition under Section 56 of the Act.

10. Mr. Shah, learned counsel for the petitioner, however, relied on a Division Bench Judgment of this Court in Ciba Ltd. v. M. Ramalingam, for the proposition that the Limitation Act has no application to a petition for rectification under Section 56 of the Act. Having gone through the judgment, it appears that this question was not raised and decided by the Division Bench of this Court. In para 10 relied on by the learned counsel for the petitioner, the Division Bench considered the question of delay and took the view that the question of delay cannot be considered from the point of view whether the applicant stood by and thereby caused substantial injury to the respondent and the injury was so substantial that that injury would outweigh the interest of the public which the Court must consider where a trade mark is likely to deceive. The question in this case, viz., whether a petition under Section 56 of the Act is governed by the Limitation Act apparently did not arise for consideration at all. In para 1 of the judgment itself, it appears that the trade mark in question "Ciba" was registered by the Registrar of Trade Mark on 3-11-1949 and the application for rectification was made on 16-3-1950. That appears to be the reason why the question of limitation was not raised. It further appears from para 11 of the judgment that the delay in question was the delay in opposing the registration of the trade mark and not the delay in applying for rectification. It is not possible to accept the contention of the learned counsel for the petitioner on the basis of the aforesaid case.

11. Mr. Shah, learned counsel for the petitioner, then relied on another Division Bench judgment of this Court in Khanshiram Surinder Kumar v. Thakurdas Deomal Rohira, reported in 1983 1PLR 4. In that case, the question that really fell for consideration was whether the respondent No. 1 had acquiesced in the user of the appellant's trade mark. The Division Bench answered the question in the negative, taking the view that in the interest of purity of register, there was no question of delay and acquiescence. In any case,

this decision can be of no avail to the petitioner since the application for rectification was made to the Registrar. It is nobody's case that the Registrar is a Court governed by the Limitation Act, 1963.

12. On the other hand, it appears that a similar question i.e. whether the Limitation Act applies to an application for rectification of the register arose before the Gujarat High Court in Patel Field Marshal Agencies v. P.M. Diesels Ltd., reported in 1998 (2) Arb, LR 412. Before the Gujarat High Court, the judgment of the Division Bench of this Court in Ciba's case (supra) was relied upon for the proposition that an application for rectification would be made at any time and was not governed by the Limitation Act. The Judgment in Ciba's case was rendered in the year 1958 when the Indian Limitation Act, 1908 was in force. The Court noticed the change brought about by the Limitation Act, 1963 and in particular Section 2(b) which states that application "includes a petition". In fact, the Gujarat High Court relied on the following observations of the Supreme Court in the case of Kerala State Electricity Board v. T.P. Kunhaliunna, :

"The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act, 1963, compared with Article 181 of the 1908 Limitation Act shows that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act, there was no division between applications in specified cases and other application as in the 1963 Limitation Act. The words "any other application" under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part 1 of the third division. Any other application under Article 137 would be application or any application under any Act. But it has to be an application to a Court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when Court is closed and extension of prescribed period if applicant or the appellant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application during such period. Article 137 will apply to any petition or application filed under any Act to a Civil Court. It is not confined to applications contemplated by or under the Code of Civil Procedure.

Where by statutes, matters are referred for determination by a Court of Record with no further provision the necessary implication is that the Court will determine the matters as a Court.

The changed definition of the words "applicant" and "application" contained in Sections 2(a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include applications original or otherwise, under special laws. The interpretation which was given to Article 181 of the 1908 Limitation Act on the principle of ejusdem generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands in isolation from all other Articles in Part I of the third division. Article 137 includes application within the word applications". These applications and applications can be under any special Act."

I find myself in respectful agreement with the Gujarat High Court, The learned counsel for the petitioner, however, relied on a judgment of the Madras High Court in Khoday Distilleries Ltd. v. Scotch Whisky Association, Scotland, reported in 7999 PTC (19) 493. It appears from para 11 of the judgment that the plea raised was really one of acquiescence along with the fact that no period of limitation is prescribed in Section 56 of the Act. In any case, the delay that was in consideration was delay in approaching the Registrar. As observed earlier, the Registrar is not a Court and the Limitation Act would prima facie have no application. I make it clear that the question whether the Limitation Act applies to the proceedings before the Registrar is not before me and I am not deciding that question.

13. Mr. Shah, learned counsel for the petitioner next relied on a judgment of the Calcutta High Court in Banik Rubber Industries v. Sree K.B. Rubber Industries and Anr., reported in 1990 -PTC-58. It appears from page 66 of the judgment that the position that limitation would not apply to an application for rectification was conceded by the counsel opposing that application. Moreover, it is not clear from the fact of the case as to the actual time gap between the registration of the mark and the application for rectification.

14. In the result, I find merit in the respondent No. 1's contention that the present petition is barred by limitation. The petition is, therefore, dismissed on that ground. There shall be no order as to costs.

15. P. S. to give ordinary copy of this judgment to the parties concerned.