* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 8th August, 2011.
+ W.P.(C) 5633/2011 & CM No.11518/2011 (for stay)
TIANJIN DISHILI INVESTMENT HOLDING
GROUP LTD ..... Petitioner
Through: Mr. Pravin Anand & Mr. Tanya
Varma, Advocates.
Versus
UNION OF INDIA ..... Respondent
Through: Mr. Sachin Datta, CGSC & Ms.
Gayatri Verma, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Not necessary
be allowed to see the judgment?
2. To be referred to the reporter or not? Not necessary
3. Whether the judgment should be reported Not necessary
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petition impugns the order dated 2nd December, 2010 of the
Intellectual Property Appellate Board dismissing the application of the
petitioner herein for amendment of the memo of parties and consequently
W.P.(C) No.5633/2011 Page 1 of 4
also dismissing the appeal preferred by the petitioner.
2. The petitioner was earlier known as Tianjin Kinsly Pharmaceutical
Co. Ltd. and it is the case of the petitioner that the name of the petitioner
was changed to the present name in the year 2004.
3. The petitioner in the year 2005 in its old name applied for grant of
patent. The application was however dismissed by the order dated 6th
October, 2009 of the Assistant Controller of Patents & Designs. The
petitioner preferred the appeal aforesaid to the Board against the said order
and during the pendency of the said appeal, realizing that the proceedings
had been undertaken in the old name, moved the application aforesaid for
amendment of memo of parties.
4. The Board vide the order impugned in this petition held that since the
change in name was effected prior to the making of the application, no case
for amendment was made out and assumedly, holding the proceedings to be
by a non-existent applicant, also dismissed the appeal.
W.P.(C) No.5633/2011 Page 2 of 4
5. Considering the nature of the controversy, the counsel for the
petitioner and the counsel for the respondent appearing on advance notice
have been heard finally.
6. The counsel for the respondent has contended that it was not even the
case of the petitioner that there was any bona fide mistake and in the
circumstances the Board was justified in making the impugned order.
7. It is the established principle as far as the Civil Courts are concerned
(see Bal Niketan nursery School Vs. Kesari Prasad AIR 1987 SC 1970 and
Jai Jai Ram Manohar Lal Vs. National Builiding Material Supply
Gurgaon AIR 1969 SC 1267) that such errors are merely an irregularity and
do not affect the institution of a proceeding. I see no reason why a more
stringent view be taken in the proceedings under The Patent Act, 1970
specially when no prejudice is shown to have been caused to any one and no
reason has been started by the Board for the petitioner to be disentitled to
such relief. The counsel for the petitioner also refers to Section 23(3) of The
Companies Act, 1956 which though is strictly not applicable, reflect the
intention of the legislature.
W.P.(C) No.5633/2011 Page 3 of 4
8. The petition is accordingly allowed. The order dated 2nd December,
2010 of the Appellate Board is set aside and the amendment to the memo of
parties claimed by the petitioner as appellant before the Board is allowed
and the appeal preferred by the appellant is restored to the position as existed
prior to the impugned order. The petitioner to file the amended memo of
parties before the Board within one month and the Board to fix a date for
hearing of the appeal.
No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
AUGUST 08, 2011
bs
W.P.(C) No.5633/2011 Page 4 of 4