{"id":118344,"date":"1999-08-13T00:00:00","date_gmt":"1999-08-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hedges-butler-ltd-vs-ms-mohan-meakin-ltd-ors-on-13-august-1999"},"modified":"2016-11-10T09:39:31","modified_gmt":"2016-11-10T04:09:31","slug":"hedges-butler-ltd-vs-ms-mohan-meakin-ltd-ors-on-13-august-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hedges-butler-ltd-vs-ms-mohan-meakin-ltd-ors-on-13-august-1999","title":{"rendered":"Hedges & Butler Ltd. vs M\/S. Mohan Meakin Ltd. & Ors. on 13 August, 1999"},"content":{"rendered":"
Delhi High Court<\/div>\n
Hedges & Butler Ltd. vs M\/S. Mohan Meakin Ltd. & Ors. on 13 August, 1999<\/div>\n
Equivalent citations: 1999 VAD Delhi 885, 81 (1999) DLT 329<\/div>\n
Author: . M Sharma<\/div>\n
Bench: . M Sharma<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
       Dr. M.K. Sharma, J. <\/p>\n
    C.M. No. 2112\/94<\/p>\n
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.\n<\/p>\n
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
\nfiled  by the Petitioner praying for condensation of the aforesaid delay  in filing the aforesaid appeal.\n<\/p>\n
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
\nbefore  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
\ndiscovered  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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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
\nsame was sent to the Bombay office. Apparently, therefore, till the  aforesaid period reasonable explanation has been provided for by the petitioner.\n<\/p>\n
     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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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
\nwritten  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
\nthe appeal was filed immediately thereafter i.e. on 29th April, 1994.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
13.  In N. Balakrishnan Vs. M. Krishnamurthy, ,
\nthe  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
\nthe  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.\n<\/p>\n
14.  In  Collector,  Land Acquisition, Anantnag & Anr. Vs.  Mst.  Katiji  & Ors.,  , Their Lordships of the  Supreme  Court
\nhave 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
\nday’s delay must be explained” does not mean that technical approach should be made.\n<\/p>\n
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
\nof  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.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Hedges & Butler Ltd. vs M\/S. Mohan Meakin Ltd. & Ors. on 13 August, 1999 Equivalent citations: 1999 VAD Delhi 885, 81 (1999) DLT 329 Author: . M Sharma Bench: . M Sharma JUDGMENT Dr. M.K. Sharma, J. C.M. No. 2112\/94 1. By this order I propose to dispose of the application […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-118344","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nHedges & Butler Ltd. vs M\/S. 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