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SCA/25710/2007 8/ 8 ORDER
THE
HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 25710 of 2007
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SANYO
CERAMICS - Petitioner(s)
Versus
SANYO
ELECTRIC CO. LTD. & 2 - Respondent(s)
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Appearance
:
DR
RAJESH H ACHARYA for
Petitioner(s) : 1,MS JAYSHRI H PADHYA for Petitioner(s) : 1,
MR
MANAV A MEHTA for Respondent(s) : 1,
MR HARIN P RAVAL for
Respondent(s) : 2,
MR HRIDAY BUCH for Respondent(s) : 2,
NOTICE
SERVED for Respondent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 28/07/2008
ORAL
ORDER
1. Learned
counsel for the petitioner wants to file rejoinder for which learned
counsel for the respondents has no objection. Such may be filed
within two weeks from today.
2. The
petitioner, by this petition, has challenged the order passed by the
Intellectual Property Appellate Board (hereinafter referred to as
‘the Board??) dated 16.11.2006 whereby, the matter is sent to the
Registrar of Trade Marks to consider the evidence of opposition.
3. Heard
Ms.R.M. Shah for the petitioner and Mr.Saurabh Banerjee with Mr.Mehta
for respondent No.1.
4. Learned
counsel appearing for both the sides are in agreement on the point
that the issue arising in this petition are the same as were
considered by this Court in its decision dated 25.07.2008 in Special
Civil Application No.9672 of 2006. In the said order, it was observed
inter alia as under:-
?S3. The
contention raised on behalf of the petitioner is that the Board has
relied upon the decision of this Court in the case of Court in the
case of Wyeth Holdings Corporation and another Vs. Controller
General of Patents, Designs and Trade Marks, reported at 2007(34) PTC
1 (Guj.), whereby, Rule-50 is held to be directory. But the said
approach on the part of the Board is erroneous inasmuch as the
judgment of this Court in the above referred case is based on the
decision of Full Bench of Delhi High Court in the case of Hastimal
Jain Trading as Oswal Industries vs. Registrar of Trade Marks and
Anr., reported at 2000 PTC 24 Delhi(FB)and
it was submitted that subsequently the Delhi High Court had an
occasioned to consider the very decision of the Full Bench of Delhi
High Court in the case of Surinder Corporation, U.S.A., vs.
Hindustan Lever Ltd., reported
at 2007 (35) PTC 388 (Delhi)
and the view of the Full Bench is not considered keeping in view the
change in the language of the statute. Therefore, it was submitted
that this Court may hold the provisions of Rule-50 as mandatory and
there was no power with the Registrar to condone the delay and
consequently, the Board has committed an error in condoning the
delay.
4. The
language of Rule-50, if read as it is, it can be said that the powers
of the Registrar to consider opposition are controlled. However, such
controlling of the power of the Registrar in capacity as quasi
judicial authority, may not be read by the Court in every case as
mandatory and in a given case on consideration of the scheme of the
Act read with the powers to be exercised as that of quasi judicial
authority, the Constitutional court while interpreting the section or
rule may hold to be directory keeping in view the purpose and the
objects of the Act. The reference may be made to the decision of the
Apex Court in the case of Salem Advocate Bar Association,
T.N. V/s. Union of India,
reported at (2005)6 SCC 344,
wherein, the Apex Court, while considering the amendment in the Code
of Civil Procedure observed, inter alia, at para-30 and 31, as under:
?S30.
While examining the scope of the proviso to order 17 Rule 1(1) that
more than three adjournments shall not be granted, it is to be kept
in view that the proviso to order 17 Rule 1(2) incorporating clauses
(a) to (e) by Act 104 of 1976 has been retained. Clause (b)
stipulates that no adjournment shall be granted at the request of a
party, except where the circumstances are beyond the control of that
party. The proviso to order 17 Rule 1(1) and order 17 Rule 1(2)
have to be read together. So read, Order 17 does not forbid grant of
adjournment where the circumstances are beyond the control of the
party. In such a case, there is no restriction on the number of
adjournments to be granted. It cannot be said that even if the
circumstances are beyond the control of a party, after having
obtained the third adjournment, no further adjournment would be
granted. There may be cases beyond the control of a party despite
the party having obtained three adjournments. For instance, a party
may be suddenly hospitalised on account of some serious ailment or
there may be serious accident or some act of God leading to
devastation. It cannot be said that though the circumstances may be
beyond the control of a party, further adjournment cannot be granted
because of the restriction of three adjournments as provided in the
proviso to Order 17 Rule 1.
31.In
some extreme cases, it may become necessary to grant adjournment
despite the fact that three adjournments have already been granted
(take the example of the Bhopal gas tragedy, Gujarat earthquake and
riots, and devastation on account of the tsunami). Ultimately, it
would depend upon the facts and circumstances of each case, on the
basis whereof the court would decide to grant or refuse adjournment.
The provision for costs and higher costs has been made because of
the practice having been developed to award only nominal costs even
when adjournment on payment of costs is granted. Ordinarily, where
the costs or higher costs are awarded, the same should be realistic,
and as far as possible actual costs that had to be incurred by the
other party shall be awarded where the adjournment is found to be
avoidable , but is being granted n account of either negligence or
casual approach of a party or is being sought to delay the progress
of the case or onany such reason. Further, to save the proviso to
Order 17 Rule 1(1) from the vice of Article 14 of the Constitution,
it is necessary to read it down so as not to take away the
discretion of the court in the extreme hard cases noted above. The
limitation of three adjournments would not apply where adjournments
is to be granted on account of circumstances which are beyond the
control of a party. Even in cases which may not strictly come within
the category of circumstances beyond the control of a party, the
court by resorting to the provision of higher costs which can also
include punitive costs in the discretion of the court, adjournment
beyond three can be granted having regard to the injustice that may
result on refusal thereof, with reference to peculiar facts of a
case. We may, however, add that grant of any adjournment, let alone
the first, second or third adjournment, is not a right of a party.
The grant of adjournment by a court has to be on a party showing
special and extraordinary circumstances. It cannot be in routine.
While considering the prayer for grant of adjournment, it is
necessary to keep in mind the legislative intent to restrict the
grant of adjournments.??
5. It
may also observe that while interpreting other provisions also, such
powers with the Court while trying the suit under the Code of Civil
Procedure for extending the time, have been read. Therefore, reading
such powers holding the procedural aspect to be directory, are not
the principle unknown while interpreting the statutory provisions. If
the judgment of this court in the case of Wyeth Holdings
Corporation & another (supra), is considered in light of the
aforesaid position, it appears that the Court with a view to save
Rule has held the provision as directory. The Board has followed the
decision of this Court, therefore, such an approach on the part of
the Board cannot be said as perverse exercise of discretion which
may call for interference by this Court in a petition under Article
227 of the Constitution.
6. The
attempt on the part of the learned Counsel to take a different view
in view of the subsequent decision of Delhi High Court in the case of
Surinder Corporation, USA (supra) cannot be countenance for
two reasons, one is that reading down of the statutory provisions
with a view to leave room to the quasi judicial authority for
exercising the discretion and thereby to enable them to render
justice to the fullest extent is not a principle unknown. Delhi High
Court in the said decision in the case of Surinder Corporation,
USA (supra) had no occasion to consider the matter from the said
angle. The second is that sitting in coordinate bench, the decision
is binding as per the principle of sound judicial discipline.
7. Learned
counsel for the petitioner next contended that even if such a
provisions of Rule is held to be directory, the application must be
made within period prior to the expiry of the outer limit and as was
not done, the delay could not be condoned.
8. Entertainment
of such contention would lead to interference with the discretion
exercised by the Board in the matter of condonation of delay which
this Court while exercising powers under Article 227 of the
Constitution, would not undertake unless it is so perverse which may
cause great injustice to the parties. In the present case, the
discretion is exercised in a manner that the opportunity is given to
the otherside to put the opposition and to lead the evidence. Thereby
the rights of the petitioner cannot be said as seriously prejudiced.
Therefore, it cannot be said that the exercise of the discretion is
so perverse which may call for the interference by this Court under
Article 227 of the Constitution.
9. The
learned Counsel for the petitioner next contended that in the
application for condonation of delay, no grounds are mentioned and,
therefore, the Tribunal ought not to have condoned the delay.
10. As
such, the Tribunal has considered overall record and has exercised
the discretion, also by awarding the costs. Therefore, such exercise
of discretion cannot be said as perverse which may call for
interference in exercise of the powers under Article 227 of the
Constitution.??
5. Same
will be the situation in the present case inasmuch as the provisions
are held to be directory and, therefore, the delay is condoned and
the matter is to be considered after considering the opposition.
Under these circumstances, in view of the aforesaid reasons, it
cannot be said that the prejudice is caused to the petitioner which
may call for interference by this Court. Further if the aspects of
the applicability of the Rule is to be considered, in view of the
reasons recorded hereinabove, no further discussion may be required.
Therefore, no case is made out for interference. Hence, the petition
is rejected.
(JAYANT
PATEL, J.)
Hitesh
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