The Single Bench of the Delhi High Court in the case of Vinod Kumar vs Intellectual Property Appellate Board & Ors. consisting of Justice C. Hari Shankar opined that Postings on Facebook cannot be treated as determinative of the location of a person at a particular point of time, at least by a Court.
Facts
This writ petition under Article 226 assailed the order of December 2020 passed by the learned Intellectual Property Appellate Board (the learned IPAB) in Rectification Petitions (FK Bearing Group Co. Ltd. v. Vinod Kumar & Anr.) The petitioner was Respondent no.1 before the learned IPAB and Respondent no.2 herein was the appellant. The rectification petitions were, therefore, instituted by Respondent 2 against the petitioner. The impugned order allowed the rectifications of petitions filed by Respondent 2 on merits. Before the learned IPAB, the petitioner had sought an adjournment. The adjournment was rejected by the learned IPAB.
Procedural History
The learned IPAB reprimanded the learned Counsel for making false statements about his availability. It ordered costs and sent the case to the Bar Council of India for non-payment.
In this petition, the court ordered the learned counsel who had been appearing before the IPAB to produce individual affidavits justifying their absence on December 30, 2020. Abhilash Gupta, Akshay Srivastava, and Suwarn Rajan Chauhan represented Respondent 1 before the IPAB. The IPAB assumed Akshay Srivastava was the lead counsel. Except for a statement by Respondent 2's counsel, the IPAB had no reason to assume Akshay Srivastava was the lead counsel.
Contentions Made
Petitioner: It was submitted that the arguing Counsel before the learned IPAB was Suwarn Rajan Chauhan who was indeed under quarantine and expired on 30th April 2021. This Court had also seen certain earlier IPAB orders in the abovementioned proceedings, in which Suwarn Rajan Chauhan appeared principally for the petitioner.
Observations by the Court
The Bench was unable to sustain the impugned order, insofar as it refused to adjourn the matter on the premise that Akshay Srivastava was the lead Counsel and that he was at Chennai on the date when the matter was taken up:
“Even otherwise, in my considered opinion, before taking an adverse view against the Counsel on the basis of a Facebook post, and referring the matter to the Bar Council of India, the learned IPAB ought, at the very least, to have given an opportunity to the Counsel to explain the circumstances. Postings on Facebook cannot be treated as determinative of the location of a person at a particular point of time, at least by a Court. Even if a Court is to take an adverse view in that regard, the Counsel ought to be given an opportunity to explain the position before such a view is taken. This Court is of the concerned opinion that the learned IPAB was needlessly strict in imposing costs and referring the matter to the Bar Council of India in such circumstances.”
It also opined the Uttarakhand High Court appeal didn't fall under the ambit of Section 42. In Vijay Gupta v. Renu Malhotra, the Division Bench of the Court found that Section 42 of the Act's venue restriction provision does not apply to enforcement proceedings. It was of the considered opinion that it could not be said that the enforcement petition has been wrongly instituted before this Court. Due to Suwarn Rajan Chauhan's quarantine and subsequent death, the court did not address the petitioner's lack of counsel in December 2020. So far as the earlier adjournments taken by the petitioner, if any, were concerned, the matter stood covered by the judgment of the Supreme Court in State Bank of India v. Chandra Govind Ji.
Judgment
The order was quashed. The rectification petitions filed by Respondent 2 stood restored for re-hearing. Inasmuch as the learned IPAB had subsequently been abolished, the rectification petitions were to be heard by this Court. The Registry was ordered to register rectification petitions under the relevant nomenclature and list them for hearing and disposition by 23 February 2023. It ordered that the IPAB's record be requested by the deadline.
Respondent 2 was ordered to file a photocopy of the complete record together with an affidavit under section 65-B of the Evidence Act, of 1872. Respondent 2 agreed to submit the registrar with the whole rectification petition record within four weeks. On providing the record, rectification petitions will be numbered, registered, and listed for disposal on 23 February 2023.
Case: Vinod Kumar vs Intellectual Property Appellate Board & Ors.
Citation: W.P.(C)-IPD 50/2021 & CM APPL. 7338/2021
Bench: Justice C. Hari Shankar
Decided on: 12th December 2022
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