HEDGES AND BUTLER LIMITED Vs. MOHAN MEAKIN LIMITED

JUDGEMENT

(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 condonation of delay in filing 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, therefore, the aforesaid application under Order 5 of the Limitation Act was filed by the petitioner praying for condonation 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 illhealth 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.