CADILA LABORATORIES LIMITED Vs. KAMATH ATUL AND COMPANY

JUDGEMENT

(1.) . This appeal is filed by Cadila Laboratories-appellant against M/s. Kamath Atul and Co. - respondent No. 1 herein against the order passed by the Assistant Registrar of Trade Marks, Ahmedabad-respondent No. 2 herein- Annexure 'C' dated 1/01/1992, by which the application of the appellant being TM 16 has been rejected.

(2.) . To appreciate the controversy in question few relevant facts may now be stated. It is the case of the appellant that it is a company incorporated under the provisions of the Companies Act, 1956 and is carrying on its business of manufacturing and marketing of medicinal and pharmaceutical preparations since many years. It is the case of the appellant that on 4/04/1986, it made an application for registration of its Trade Mark 'HERBINOL' with the Trade Mark Registry, Bombay and the said application was given Sr. No. 452044, in accordance with the provisions of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as 'the Act'). The application was advertised under Sec. 20(1) of the Act, in the Trade Marks Journal No. 956 dated 1/04/1989 at page 19. Under the provisions of Sec. 20(1) of the Act, such application can be resisted by making appropriate application before the authority. It is the case of the appellant that the first respondent made an application in the form of notice of opposition Form TM 5 along with the request in Form TM 4 4/08/1989, objecting the registration of Trade Mark of the Company. According to the appellant an application in the form of notice of opposition must be made within a period of 3 months from the date of advertisement of an application for registration or within such further period not exceeding one month in the aggregate as the Registrar, on application made to him in the prescribed manner and on payment of prescribed fee allows. It is the case of the appellant that when the application was published in the Journal on 1/04/1989, the respondent No. 1 was required to file notice for opposition on or before 1-7-1989 or at the most on or before 1-8-1989. It is the case of the appellant-Company that the Company came to know about the fact that the notice of opposition was made by the first respondent on 2/08/1989, and therefore, the appellant-Company filed an interlocutory petition (Annexure 'B') on 28/12/1989, inter alia, contending that since the application was made on of after 2/08/1989, the notice of opposition was ab initio Void and should not have been entertained. It was, therefore, required to to be taken off the file and the entire notice of opposition was required to be summarily rejected. The respondent No. 2 heard the said application and passed an order on 24/01/1991. In the said order, he observed that it was the case of the first respondent that the notice of opposition was sent by the first respondent by Speed-Post on 27/07/1989 and was delivered in the office of the 2nd respondent on 28/07/1989. It was a mistake and or fault on the part of the office of the second respondent that receipt was issued to the first respondent as late as on 2/08/1989. Looking to the order annexed to the Misc. Petition, it clearly appears that the second respondent accepted the said explanation put forward by the first respondent and held that if there was any fault on the part of the Registry of the second respondent, the first respondent should not be penalised for such an act. He, therefore, observed as under:

(3.) . Mr. R. R. Shah, learned Counsel for the appellant-Company contended that the order passed by the second respondent is clearly illegal, contrary to law and requires to be quashed and set aside. He submitted that the second respondent has committed an error of law in rejecting the application for amendment. According to Mr. Shah, the principles analogous to the provisions of Order VI, :Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') are applicable to the present proceedings also and as per well settled principles of law, the provisions relating to amendment of pleadings are required to be liberally construed. For the said purpose, Mr. Shah drew my attention to the leading decision of the Supreme Court including the case of Patil v. Patil, reported in AIR 1957 SC 357 and contended that in rejecting the application, the second respondent has exceeded his jurisdiction and power which requires to be corrected by this Court. Mr. Shah also submitted that there is an error apparent on the face of record, committed by the second respondent in not considering the vital fact that at an earlier occasion when the interlocutory petition was filed by the Company on 28/12/1989, it was not with regard to amendment of counter statement but a specific prayer for treating the notice of opposition as null and void and to throw away the said objections at that stage. The present interlocutory application is entirely different in nature and, therefore, the second respondent was not justified in invoking the provisions analogous to the doctrine of res judicata. He also submitted that irrelevant considerations have been taken into account by the second respondent in observing that the first respondent was a small company being harassed by the appellant-Company. He contended that if in law, it is open to the appellant-Company to take objection with regard to limitation by amending his counter statement, the second respondent cannot reject the said prayer made by the company. He, therefore, submitted that the appeal may be allowed and the order may be quashed and set aside.