Calcutta High Court
Kirorimal Kashiram Marketing And ... vs The Registrar Of Trade Marks And Anr on 6 August, 2024
OCD-26
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION
ORIGINAL SIDE
[COMMERCIAL DIVISION]
IPDTMA/81/2023
IA No.GA/1/2023
KIRORIMAL KASHIRAM MARKETING AND AGENCIES PVT. LTD.
VS
THE REGISTRAR OF TRADE MARKS AND ANR.
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : August 6, 2024.
Appearance:
Mr. Sayantan Basu, Adv.
Ms. Tanmoy Roy, Adv.
... for the petitioner
Ms. Anamika Pandey, Adv.
... for the respondent no.1
Mr. Debnath Ghosh, Adv.
Ms. Sumitra Chowdhury, Adv.
Mr. Abhijit Sarkar, Adv.
Mr. Abhikchitta Kundu, Adv.
... for the respondent no.2
The Court: Mr. Sayantan Basu, learned counsel, is appearing for
the petitioner.
Ms. Anamika Pandey, learned counsel, is appearing for the
respondent no.1.
Mr. Debnath Ghosh, learned counsel, is appearing for the
respondent no.2.
The petitioner has filed an application being GA/1/2023 praying
for condoning the delay of 156 days for filing of the appeal against the order
dated 20th March, 2023 passed by the Deputy Registrar of Trade Marks in
Opposition No. 955847 filed in application no.3810398 in Class 30 for the
Trade Marks R-715 FOUR DEER (label).
Counsel for the petitioner submits that the Advocate-on-record is
based in New Delhi and accordingly, the impugned order and the record
was communicated to the learned Advocate at New Delhi from Kolkata for
taking necessary steps for filing of the appeal. On receipt of the order and
the relevant record, learned Advocate for the petitioner has sent the record
and appeal to the learned Advocate for the petitioner at Kolkata. After going
through the said appeal, it was found that some of the annexures were not
legible and accordingly, the petitioner has managed for legible copies of the
annexures and in the meantime from 21st October, 2023, Puja Vacation of
Calcutta High Court commenced and the Court was reopened on 15 th
November, 2023. After reopening of the Court, the appellant has filed the
present appeal. Counsel for the petitioner submits that there is no
intentional delay in filing of the present appeal on the part of the appellant.
Learned counsel for the respondent no.2 has raised objection and
submitted that no sufficient cause has been shown as to why the delay of
156 days has been caused for filing of the instant appeal. He submits that
only in paragraph nos.4 and 5 of the application, the petitioner has tried to
justify the cause for delay of 156 days but no sufficient cause is shown.
Counsel for the respondent no.2 submits that condoning the
delay is not a matter of course. The petitioner has to explain the delay of
each and every day why the petitioner has not filed the appeal within the
prescribed time but the said cause has not been disclosed in the present
application.
Learned counsel for the respondent no.2 has relied upon the
judgment reported in 2011 SCC OnLine P&H 12898 in the case of
Haryana State Industrial & Infrastructure Development Corporation vs. Time
Master India Limited and Others and submitted that in the said case, the
Hon'ble Division Bench of Punjab and Haryana High Court has
categorically held that it has not been explained at all as to why such long
time was taken by the Advocate General to take decision for filing appeal
against the order. He further submits that it was also not explained why
after the decision of Advocate General; appeal is filed after more than 11
months.
Learned counsel for the respondent no.2 relied upon another
judgment reported in 1994 Supp (2) Supreme Court Cases 696 in the
case of Union of India and Others vs. Vidarbhavenaer Industries and
submitted that in the said case also, the Hon'ble Supreme Court also has
categorically held that if the appellant fails to show the sufficient cause for
condoning the delay, there is no reason to condone the delay and
accordingly, the Hon'ble Supreme Court has rejected the prayer of the
appellant for condoning the delay.
Counsel for the respondent no.2 also relied upon the judgment
reported in (2013) 11 Supreme Court Cases 668 in the case of Kumar and
Others vs. Karnataka Industrial Cooperative Bank Limited and Another and
submitted that in the said case also the petitioner has filed two revisional
applications along with condoning the delay of 290 days as well as 785
days but the Hon'ble Supreme Court has held that the authorities had not
disclosed sufficient cause as to why the Court shall condone the delay in
preferring revisional applications and accordingly, the Hon'ble Supreme
Court has rejected the applications for condoning the delay.
In reply to the judgments relied upon by the respondent no.2,
learned counsel for the petitioner submits that the facts and circumstances
of the cases which the respondent no.2 has relied upon are totally different
from the facts and circumstances of the present case. Counsel for the
petitioner submits that the petitioner has sufficiently shown the cause for
non-filing of the appeal within the prescribed time in paragraph nos.4 and
5 of the present application.
Heard learned counsel for the respective parties. Perused the
application.
The petitioner has narrated the cause for non-filing of the appeal
within the prescribed time in paragraph nos.4 and 5 which are as follows :
"4. That the Counsel for the Petitioner, who are on record
in the present Opposition proceeding is based on New Delhi
and it was also required to communicate with the counsel from
Kolkata to file the present Appeal and to follow all the
necessary procedures to file the present Appeal. For the
communication with the Petitioner and also with the Counsel
from Calcutta and again sending the complete Appeal with the
documents to Calcutta for filing, the time has consumed and
therefore the delay. However, it is submitted that the delay is
not intentional and the petitioner has been always diligent in
proceeding with the opposition and the instant appeal
proceeding.
5. Further, the counsel for the Petitioner was arranging
for more clearer copies of Annexures filed along with the Appeal
and took certain times on around 21.10.2023. It is further
submitted that as after 20.10.2023, the Hon'ble Calcutta High
Court was on vacation and re-opened on 15.11.2023, which
caused further delay to file the present Appeal."
In the said paragraphs, the petitioner has categorically stated that
the Advocate-on-record is based in Delhi and the records had been sent to
Delhi. Subsequently, after preparation of the appeal it was sent to Kolkata
for filing of the same but at the time of filing of the appeal it was found that
some illegible copies have been annexed with the said appeal and the
petitioner has managed to get legible copies of the annexures and in the
meantime, Puja Vacation started from 21st October, 2023 and after
reopening of the Court on 15th November, 2023, the appellant has filed the
present appeal.
The judgment relied upon by the counsel for the respondent no.2
in the case of Haryana State Industrial & Infrastructure Development
Corporation (Supra), this Court finds that in the said case, there is a delay
of 415 days for preferring an appeal and in the said case, the Advocate
General of Haryana has given opinion after a period of nine months. After
the period of nine months again for more than 11 months, the file was lying
in the department and the authorities had not shown any cause why such
delay was caused and accordingly, Punjab and Haryana High Court has
rejected the application. In view of the said facts and circumstances, this
Court finds that the said judgment is distinguishable from the facts of this
case.
As regard the judgment relied upon by the respondent no.2 in the
case of Kumar and Others (Supra), this Court finds that in the said case, it
was mentioned that the order of Trial Court was not intimated to the bank
and only after receipt of the certified copy of the order, revisional
application was filed. The Hon'ble Court was not satisfied with the cause
shown in the said application but fact of the case is distinguishable.
With regard to the judgment relied upon the by the respondent
no.2 in the case of Union of India and Others (Supra), the State has filed an
appeal and taken the ground that the file was lost but the Hon'ble Supreme
Court has noted that it is the Government Department who has taken the
plea that the file was lost, but the Government has not shown any
document that any action has been taken against any of the employees who
is responsible for the same.
Considering the above, this Court finds that facts of the above
cases are distinguishable from the facts of the present case.
In view of the above and considering the cause shown in
paragraph nos.4 and 5 of the present application, this Court finds that the
petitioner has shown sufficient cause for condoning the delay of 156 days
in preferring the appeal.
Accordingly, GA/1/2023 is disposed of.
Appeal being IPDTMA/81/2023 is admitted.
Counsel for the respondents pray for time to file affidavit in
opposition.
Let affidavit in opposition be filed within four weeks; reply thereto,
if any, be filed within two weeks thereafter.
After completion of pleadings, the appellant is directed to prepare
requisite number of paper books enclosing all the papers within three
weeks thereafter.
The Registrar, Trade Marks is directed to transmit the original
record of Trade Mark Application No. 3810398 in Class 30 of the Trade
Marks R-715 FOUR DEER (label) and Opposition No. 955847 within three
weeks from the date of receipt of copy of this order.
The appellant is directed to communicate this order to the
Registrar, Trade Marks for compliance.
(KRISHNA RAO, J.)
sp3
