Liberty Footwear Company vs M/S. Force Footwear Company & ...
2009 Latest Caselaw 3833 Del

31 & 37.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+     W.P.(C) 8801-02/2009


%                              Date of decision : 18th September, 2009

      LIBERTY FOOTWEAR COMPANY                   ..... Petitioner
                    Through Mr. Pravin Anand, Ms. Hima Lawrence,
                    Advocates.

                  versus


      M/S. FORCE FOOTWEAR COMPANY & OTHERS ..... Respondents
                     Through Mr.S.K.Bansal, Mr.Pankaj Kumar,
                     Mr.Ranjeet Rana, Advocates.

      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA

                        O R D E R (ORAL)

1. Heard. With the consent of the parties, the writ petitions are

taken up for final disposal.

2. This Order will dispose of both the writ petitions filed by the

petitioner herein against the Order dated 19th August, 2008

passed by the Intellectual Property Appellate Board (hereinafter

referred to as IPAB, for short) refusing to take on record the

additional documents filed by the petitioner along with the

affidavit by way of evidence. Learned IPAB has observed that

the application for taking on record additional documents does

WPC NOS.8801-02/2009 Page 1 not disclose sufficient ground for extending the time to file

documents. It has been recorded as under:

"....Even if any plausible reason or ground is given justifying for the condonation of delay, there is no provision which empowers this Appellate Board to condone such delay."

3. IPAB has been constituted under Section 83 of the Trade Marks

Act, 1999 (hereinafter referred to as Act, for short) and is a

quasi judicial tribunal which exercises power as an appellate

forum against an order/decision of the Registrar. It also

exercises original jurisdiction in respect of rectification petitions

against the orders of registration passed by the Registrar.

Section 93 of the Act stipulates that no court or authority shall

have or is entitled to exercise any jurisdiction, power and

authority in relation to matters referred to in Section 91(1) of

the Act. Section 100 of the Act provides for transfer of all

pending appeals and applications for rectification in the High

Courts, against any order or decision passed by the Registrar,

to IPAB w.e.f the date notified by the Central Government.

4. Section 92 of the Act states that IPAB shall not be bound by the

procedure laid down in the Code of Civil Procedure, 1908

(hereinafter referred to as Code, for short) but shall be guided

by the principles of natural justice, subject to the provisions of

WPC NOS.8801-02/2009 Page 2 the Act and the Rules made there under. IPAB has powers to

regulate their own procedures including fixing place and time of

hearing. Sub-section (2) to Section 92 states that IPAB shall for

the purpose of discharging its functions under the Act have the

same power as are vested in the civil courts under the Code

while trying a suit for receiving evidence, issuing commission

for examination of witnesses, requisitioning of public records

and any other matter which is prescribed. Under sub-section (3)

of Section 92 proceedings before IPAB are judicial proceedings

under Sections 193, 228 and for the purpose of Section 196 of

the Indian Penal Code, 1860 and Section 195 of the Code of

Criminal Procedure, 1973.

5. It is well settled that quasi judicial tribunals on procedural

matters are entitled to adopt a procedure which they feel is just

and fair. Unless there is a specific or implied bar or prohibition

by the statute, a quasi judicial tribunal has flexibility and can

follow procedure, which is fair and compliant with the principles

of natural justice. Every procedure is acceptable and

permissible until it is shown to be prohibited by law (See,

Hansraj Harjiwan Bhate versus Emperor AIR 1940 Nag.

390 follwing Narasingh Das versus Mangal Dubey 1882 ILR

(5) All 583). Further quasi judicial tribunals have ancillary and

WPC NOS.8801-02/2009 Page 3 incidental powers to ensure that there is effective adjudication

and decision. In Suresh Jindal versus BSES Rajdhani

Power Ltd. (2008) 1 SCC 341, the Supreme Court has

observed that a statutory authority while exercising statutory

powers may do all things, which are necessary for giving effect

thereto. Similarly, in Income Tax Officer, Cannanore vs

M.K. Mohammed Kunhi AIR 1969 SC 430, the Supreme

Court while examining the question whether Income Tax

Appellate Tribunal has inherent right to grant stay of the

impugned demand during pendency of an appeal before them,

had observed as under :

"........It is a fairly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective (Sutherland Statutory Construction, Third Edition, Articles 5401 and 5402). The powers which have been conferred by Section 254 on the Appellate Tribunal with the widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective. In Domat's Civil Law, Cushing's Edition, Vol.1 at page 88, it has been stated:

"It is the duty of the judges to apply the laws, not only to what appears to be regulated by their express dispositions but to all the cases where a just application of them may be made, and which appear to be comprehended either within the

WPC NOS.8801-02/2009 Page 4 consequences that may be gathered from it."

Maxwell on interpretation of Statutes, Eleventh Edition contains a statement at p. 350 that "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdiction data est, ea quoqe concessa eese vindentur, sine quibus jurisdicto explicari non potuit". An instance is given based on Ex Parte, Martin, (1879)4 QBD 212 at p.491 that "where an inferior court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedly conveyed by the enactment, for the power would be unless if it could not be enforced."

6. In the subsequent portion of the judgment it was further

observed as under :-

"8. Section 255(5) of the Act does empower the Appellate Tribunal to regulate its own procedure, but it is very doubtful if the power of stay can be spelt out form that provision. In our opinion the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when Section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner but the Act is silent in that behalf when an appeal is pending before the Appellate Tribunal. It could well be said that Section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceeding as will prevent the appeal if successful from

WPC NOS.8801-02/2009 Page 5 being rendered nugatory."

7. Courts and tribunals during hearing of any case do pass orders

fixing and granting the time and giving directions to the parties

like file documents, replies, etc. The courts or the tribunal in

such cases retain the power to extend the time granted, unless

there is a specific bar or prohibition in the Act or the Rules.

Time once fixed by the Court or the tribunal is not sacrosanct or

the final word. These orders or directions fixing the time for

compliance are procedural orders and in terrorem and are

passed for a purpose to avoid delay and expedite the

proceedings. Courts or tribunals do have the power to extend

the period/time fixed by them. Extension of time does not

amount to review of the earlier order.

8. There is difference between procedural review and substantive

review. As explained by the Supreme court in the case of

Grindlays Bank Ltd. versus Central Government

Industrial Tribunal and others 1980(Supp) Supreme Court

Cases 420, the Court or a tribunal have inherent power of

procedural review but right to substantive review has to be

specifically conferred. In the said case, application for setting

aside of ex parte award was held to be maintainable on the

ground that it falls in the category of procedural review and

WPC NOS.8801-02/2009 Page 6 cannot be categorized as substantive review. It was observed

as under:-

"The Tribunal had the power to pass the impugned order if it thought fit in the interest of justice. It is true that there is no express provision in the Act or the rules framed there under giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or a body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary."

9. The Supreme Court in Mahanth Ram Das versus Ganga

Das AIR 1961 SC 882, had examined the question whether the

courts have the inherent power to extend the time when a case

is not covered by any specific provision. In the said case time

for payment of deficient court fee as fixed had expired. The

order fixing the time was peremptory. Referring to the powers

of the Court to extend the time, when by an earlier order a

specific time limit was fixed and had expired, it was observed as

under:-

"Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put

WPC NOS.8801-02/2009 Page 7 themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians. Cases are known in which Courts have moulded their practice to meet a situation such as this and to have restored a suit or proceeding, even though a final order had been passed."

10. In Ganesh Prashad Sah Kesari versus Lakshmi Narayan

Gupta (1985) 3 SCC 53, the Supreme Court observed that

when a time is fixed or granted by a court for doing any

prescribed act or thing, the court in its discretion can enlarge

the time fixed though the period originally fixed/granted had

expired. Time once fixed, does not whittle down the discretion

of the court to further extend the time. In the said case the

question was whether a court can extend the time to enable a

tenant to deposit rent.

11. The Calcutta High Court in Sethia Mining & Manufacturing

Corporation Ltd versus Khas Dharmaband Colliery

Company Pvt Ltd AIR 1982 Cal. 413 examined the question

whether after passing an order fixing specific time, the court

becomes functus officio and has no jurisdiction to entertain a

WPC NOS.8801-02/2009 Page 8 prayer for extension of time. It was observed that courts in

procedural matters do pass conditional or even peremptory

orders but these orders are in terrorem for purpose of

compelling a litigant to comply with the procedure and avoid

prolongation of a suit or proceeding. It would be incorrect to

state that the court is rendered powerless to extend time

initially granted. Similar view has also been expressed by the

Bombay High Court in the case of Marketing and

Advertising Associates Pvt. Ltd versus Telerad Private

Ltd. (1969) 39 Comp. cases 436 (Bom). While dealing with

the Companies (Court) Rules, 1959, it was observed that in

procedural matters time granted and fixed by the court can be

extended. In the said case by a consent order, time was fixed

for payment of amounts in a petition for winding up. There was

a default. However, referring to Rule 7 of the Company (Court)

Rules, 1959, it was observed that power of Courts to extend

time applied even to consent orders, as long as the matter is

alive and not disposed of. The Division bench quoted with

approval the following observations in Haridas Gangalbhai v

Vijayalakshmi Navinchnadra Mafatlal, Appeal No 84 of

1956:

"Now the principle of law is well settled and

WPC NOS.8801-02/2009 Page 9 does not require much elaboration. The Court has always the jurisdiction to extend time for the doing of any act by a party. Section 148 of the Civil Procedure Code deals with those matters which have got to be done under the Code or allowed under the Code, but independently of Section 148 the Court has inherent jurisdiction to extend time for the doing of any order made by the Court, and there can be no question that the Court has jurisdiction to extend the time for payment."

12. The Punjab & Haryana High Court in the case of Hukma and

others versus Manga and others AIR 2003 P&H 287

examined Sections 148 and 149 of the Code and has observed

that extension of time to pay court fee when the extended time

originally granted has expired, exists and the power to further

extend time is not exhausted.The court retains the power to

grant further extension. Time in such cases can also be

enlarged even where the first extension of time has expired. In

United Commercial Bank versus Mani Ram AIR 2003 HP

63 it was observed that when time is fixed by the court and not

by any statute, the court retains the inherent power to extend

the time. However when time is fixed by a statute and the

provision is mandatory then the position may be different.

13. Rules of procedure, it is well settled, are handmaid of justice

and are normally treated as directory and not mandatory unless

WPC NOS.8801-02/2009 Page 10 legislative intent is opposite. Most of the procedural rules are

enacted with the object to ensure expeditious trial and do not

normally impose a prohibition and bar on the power of the

court/tribunal to extend time. A prohibition or bar requires a

penal consequence which should flow from non-compliance of a

procedural provision. In Kailash versus Nankhu AIR 2005 SC

2441 and Salem Advocate Bar Association, Tamilnadu

versus Union of India AIR 2005 SC 3353 it has been held

that there may be many cases where non-grant of extension

would amount to failure of justice. The object of procedural

rules is not to promote failure of justice. Procedural rules

deserve to be read down to mean that where sufficient cause

exists or events are beyond the control of a party, the Court

would have inherent power to extend the time.

14. In the impugned order, IPAB has referred to Rule 14 of the

Intellectual Property Appellate Board (Procedure) Rules, 2003

which reads as under:-

"14. Extension of time.- (1) If the Appellate Board is satisfied, on an application made to it in the prescribed Form 3 under these rules, that there is sufficient cause for extending the time for doing any act prescribed under these rules (not being a time expressly provided for in the Trade Marks Act, 1999), whether the time so specified has expired or not, it may subject

WPC NOS.8801-02/2009 Page 11 to such conditions as it may think fit to impose, extend the time and inform the parties accordingly.

(2) Nothing in sub-rule (1) shall be deemed to require the Appellate Board to hear the parties before disposing off an application for extension of time and no appeal shall lie from any order of the Appellate Board under this rule."

(emphasis supplied)

15. The aforesaid Rule permits and allows IPAB to extend the time

for doing any act prescribed under the IPAB Rules whether such

time as specified has expired or not. Thus IPAB has been given

power to extend the time even if the time is specifically fixed

under the Rules but cannot extend time fixed under the

provisions of the parent Act. It will be incongruous to hold that

IPAB has power to extend the time fixed under the statutory

Rules but is functus officio and barred from extending time

fixed in an order or direction given in an earlier order passed by

them. It follows that IPAB has the power to extend the time

even when it has fixed a specific time in their earlier order. Rule

14 certainly does not bar or expressly or impliedly prevent the

IPAB from extending time fixed by them in an order. IPAB

retains inherent eight and power to extend time. IPAB is

required to follow fair and just procedure. Section 92 of the Act

gives wide discretion to IPAB in following and adopting its own

WPC NOS.8801-02/2009 Page 12 procedure but the procedure should be fair and prevent

injustice. Principles of natural justice do not state that the time

once fixed by the Court or forum cannot be extended.

16. The second question which arises for consideration is whether

the petitioner has disclosed sufficient cause and justification for

condonation of delay in filing of documents. During the course

of hearing before me, it is pointed out that the petitioner has

already paid Rs.75,000/- as cost to the respondent pursuant to

an interim directions passed by this court. It also transpires that

the respondent have filed six additional affidavits by way of

evidence which have not been taken on record because of the

delay in filing of the same. It does appear that the petitioner is

somewhat responsible for the delay and has defaulted in filing

of documents within time. The petitioner, it is apparent, did not

realize the significance and importance of filing a detailed

application explaining the reasons why there was delay in filing

of documents. However, it is noticed that in the present case

final arguments were heard on 25-26th October, 2007. Orders

were not passed and the matter was relisted for hearing to

enable the parties to file affidavit by way of evidence. There are

two proceedings pending before the IPAB, one filed by the

petitioner and the other by the respondent for rectification.

WPC NOS.8801-02/2009 Page 13 Keeping these aspects in mind and to ensure that there is

effective and complete adjudication of disputes, one last

opportunity should be granted to the petitioner and the

respondent to file documents and also file affidavit by way of

evidence in support of their cases. The petitioner and the

respondents will file additional documents if any within four

weeks from today and affidavits by way of evidence within four

weeks thereafter. No further extension of time will be granted

as agreed and accepted by the learned counsel for the parties.

Additional documents and affidavits by way of evidence already

filed will be taken on record.

17. Impugned orders are accordingly set aside and modified to the

extent indicated above. Parties will appear before IPAB on the

date already fixed.

The writ petitions are disposed of. In the facts and

circumstances of the case, there will be no further order as to

costs.

SANJIV KHANNA, J.

      SEPTEMBER 18, 2009
      P/VKR




WPC NOS.8801-02/2009                                               Page 14