JUDGMENT
Dr. M.K. Sharma, J.
C.M. No. 2112/94
1. By this order I propose to dispose of the application registered as C.M. No. 2212/99 filed in the present petition/ appeal seeking for condensation of delay in the petition/appeal.
2. The petitioner has preferred an appeal in this Court under Section 109(2) of the Trade and Merchandise Act as against the order dated 6th August, 1993 passed by the Deputy Registrar of Trade Marks, Delhi. While filing the aforesaid appeal there was a delay of about 166 days and, there fore, the aforesaid application under Order 5 of the Limitation Act was
filed by the Petitioner praying for condensation of the aforesaid delay in filing the aforesaid appeal.
3. It is stated in the said application that the impugned order, as against which the appeal was filed, was passed on 6th August, 1993 and the same was received by the representative of the petitioner at their Calcutta office during the third week of August, 1993. It is further stated in the application that the said matter was dealt on behalf of the petitioner by M/s. De Penning and De Penning, Advocates and Solicitors in Calcutta, who have also their offices at Madras and Bombay and the aforesaid matter was argued before the Deputy Registrar of Trade Marks by Mr. V.G. Nair, Advocate, who is a Senior Officer of the Bombay Branch office of M/s. De Penning and De Penning, Advocates and Solicitors. As the said matter was dealt with by him and because the entire records were lying at the Bombay office, the said order was sent to the Bombay office for taking further action for appeal by Sh. V.G. Nair, Sr. Officer of the company, who argued the matter
before the Deputy Registrar, Trade Marks. It is also stated that Sh. V.G. Nair fell ill, and was also hospitalised due to his ill-health and, therefore, he could not give his attention for preparing the papers for filing an appeal. It is stated that the aforesaid order was despatched from Calcutta to Bombay office with office memo dated 17th August, 1993 and a copy of the said memo is placed on record, it is further stated that Mr. V.G. Nair was unwell from September, 1993 to December, 1993 and thereafter he was admitted to hospital wherein he was an indoor patient from December, 1993 to March, 1994 and that he finally expired on 7th May, 1994. It is also stated that Sh. V.G. Nair did not attend the office work from 4th September, 1993 to April, 1994. It is also stated in the affidavit filed on behalf of the petitioner that on routine inspection in the 1st week of March, 1994 by the Calcutta office about the progress of the appeal, it was
discovered that the original order was also not traceable on the table of Mr. V.G. Nair, Advocate. Although Mr. Nair was released from the hospital during the period from March to April, 1994, he was again re-admitted to the hospital on 14th April, 1994. It is further stated that the papers were handed over to the present Counsel for the petitioner on 4th March, 1994 under letter of Sh. C.R. Bakshi of the De Penning and De Penning, Advocates and Solicitors. A copy of the said letter is also placed on record. An affidavit has been filed by the present Counsel for the petitioner contending, inter alia, that during the second week of March, 1994 he received the relevant files from the Bombay office of De Penning and De Penning for preparing the appeal as well as for applying for the certified copy and thereafter during the third week of March, 1994 he drafted the appeal and sent the power of attorney to Mr. C.R. Bakshi of De Penning and De Penning, Calcutta for approval of the draft, attestation of the affidavits and attested power of attorney in his favour, which he received on 27th April, 1994 and thereafter filed the appeal on 29th April, 1994. According to the petitioner, the delay in filing the appeal is bona fide and that there was sufficient cause for not filing the appeal within the period of limitation.
4. The aforesaid application is opposed by the respondent, who has contended, inter alia, that the explanation given by the petitioner for the delay in filing the appeal does not merit credence and that laches and negligence is writ large on the face of the record at every stage.
5. In the light of the aforesaid pleadings of the parties, I have also heard the learned Counsels appearing for the parties on the application under Section 5 of the Limitation Act.
6. The impugned order as against which the appeal is filed, was passed on 6th August, 1993 and the same is stated to have been received at the Calcutta office of the De Penning and De Penning, Advocates and Solicitors some time in third week of August, 1993. The respondent has even contested the aforesaid statement contending, inter alia, that they received the said order vide letter dated 10th August, 1993 and if the copy of the order was communicated by the letter dated 10th August, 1993, it is possible that the petitioner received the same some time in the middle of August, 1993 and, therefore, the aforesaid statement that the representative of petitioner, namely, M/s. De Penning and De Penning received the same in the third week of August, 1993 cannot be believed. The said contention cannot be accepted for the simple reason that the copy of the order sent by letter dated 10.8.1993 could have been received some time prior to 17.8.1993 when the
same was sent to the Bombay office. Apparently, therefore, till the aforesaid period reasonable explanation has been provided for by the petitioner.
It is also the case of the petitioner that the said papers were handed over to Mr. V.G. Nair, for preparing the appeal but as he was unwell from September, 1993 to December, 1993 and thereafter hospitalised till March, 1994 he could not attend to the papers. Therefore, a reasonable explanation exists for not filing the appeal till then.
7. Counsel for the respondent, however, submitted that there are many other officers in the office of M/s. De Penning and De Penning, who could have effectively handled the said matter and prepared the appeal and, therefore, the said explanation should not be accepted.
8. I, however, cannot agree with the aforesaid submission for the simple reason that the matter was handled and argued by Mr. V.G. Nair, Advocate and, therefore, he was in the full knowledge about the issues and the disputes and it was, therefore, likely that the matter was left to be handled by him. Since he was unwell and was hospitalised upto March, 1994, in may considered opinion, proper and reasonable explanation has been furnished by the petitioner for the delay in filing the appeal within the period of limitation.
9. From the affidavit placed on record by the petitioner, it transpires that Mr. V.G. Nair, Advocate was released from the hospital some time in March, 1994 and he was outside the hospital for a short period but again was re-admitted to the hospital on 14th April, 1994. It is thus proved and established that even during the aforesaid period Mr. V.G. Nair was not keeping good health and again had to be hospitalised on 14th April, 1994. The papers were handed over to the present Counsel for the petitioner some time in the second week of March, 1994. On 4th March, 1994, a letter was
written by M/s. De Penning and De Penning to the present Counsel for the petitioner referring therein the telephonic conversation on the matter between him and Mr. Bakshi on 3rd March, 1994 wherefrom it also transpires that instructions had been given to the Bombay office to send the file to the present Counsel for the petitioner for preparing the appeal, the stay application and an application for condensation of delay. The petitioner is an overseas client of M/s. De Penning and De Penning and, therefore, the power of attorney was to be obtained from London which was sent to them for execution, which appears to have been executed on 8th April, 1994 at London. A copy of the said power of attorney is also placed on record where from it appears that stamp was affixed on the said power of attorney on 25th April, 1994. The papers were stated to have been sent by Speed Post to the Counsel on 27th April, 1994 which was received on 28th April, 1994 and
the appeal was filed immediately thereafter i.e. on 29th April, 1994.
10. Counsel for the respondent, in this context, submitted that no explanation has been given for the period from 8th April, 1994 till the date of filing of the appeal i.e. 29th April, 1994. He also submitted that no stamp was to be affixed on the said power of attorney as is sought to be done in the preset case. The power of attorney was executed on 8th April, 1994 and was apparently sent back to M/s De Penning and De Penning, Advocates and Solicitors for onward transmission to the Counsel. Stamp was affixed to the said power of attorney, which appears to be on 25th April, 1994.
11. The aforesaid facts revealed from the records disclose that the steps were being taken by the petitioner to prefer the appeal as expeditiously as possible but because of unforeseen and compelling circumstances, the appeal could not be preferred. In the backdrop of the facts stated above it cannot be held that the delay in approaching the Court was deliberate and wilful.
12. condensation of delay is a matter of discretion of the Court which is to be exercised judicially. Length of delay is of little consequence if the explanation given by the defaulting party could be accepted as reasonable and valid.
13. In N. Balakrishnan Vs. M. Krishnamurthy, ,
the Supreme Court has held that the rules of limitation are not meant to destroy the right of parties and they are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. In the said case the Supreme Court also held that in every case of delay there can be some lapse on the part of the litigant concerned but that alone is not enough to turn down his plea and to shut the door against him. In the present case, there could be some lapse on the part of the petitioner in approaching the Court and in filing the appeal but the petitioner is an overseas client of
the De Penning and De Penning, Advocates, which is a solicitor firm and representing the petitioner in the Court in this country. Even if it is assumed that there is some lapse, the same is of the representative. From the facts of the present case, it cannot be assumed and/or presumed that the delay was occasioned by the petitioner deliberately to gain time. The explanation given by the petitioner for the delay in approaching the Court appears to be bona fide and reasonable and in any case does not reflect or could be said to be a part of dilatory tactics.
14. In Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors., , Their Lordships of the Supreme Court
have held that a justice-oriented approach has to be adopted while dealing with an application under Section 5 of the Limitation Act and that “Every
day’s delay must be explained” does not mean that technical approach should be made.
15. Considering the entire facts and circumstances of the case, it cannot be held that the petitioner had abandoned its legal remedy and, therefore, I am of the opinion that sufficient cause within the meaning of Section 5
of the Limitation Act is made out for condoning the delay in filing the appeal under the provisions of Section 109(2) of the Trade and Merchandise Act. The application is, therefore, allowed and the delay in filing the appeal stands condoned and the appeal shall be treated to have been filed within the prescribed period of limitation.