(1.) Rule. Ld. counsel Mr. Dushyant Dave for Ld. counsel Mr. PP Banaji, waives service of rule for Respondent No.1. The orders sought to be challenged in the Appeal are the Orders dated 24th August, 1993. The Appeal was required to be presented on/or before 24th November 1993. The Appeal has been filed on 22nd July 1996. The Appellants/Applicants urge that, regard being had to the provisions contained in Sec. 5 of the Limitation Act, 1963, and in Rule 121 of the Trade & Merchandise Marks Rules (1959), the delay in filing the Appeal requires to be condoned and the Appeal requires to be admitted. The cause pleaded is the "gross misdemeanour and inaction" on the part of the Trade Mark Agents working as the Agents of the Appellants/Applicants under Sec. 123 of the Trade & Merchandise Marks Act, 1958. The challenge posed by the Respondents/opponents is that, the delay has not been explained by pointing out sufficient cause either in law or in facts, and that, no case has been made out for condoning the delay.
(2.) The Applicants before me in this application for condonation of delay are the Appellants. The Applicant No.1 used to trade under the name & style of M/s. Vipul International at Surat, who was granted registration for its Trade Mark " VIPUL " under No. 419705 with effect from 27-3-1994, in respect of and in relation to "SAREES"included in Class-24, on the basis of the use of the Trade Mark, since March 1980. A Rectification Application came to be filed by the Respondent No.1 before the Respondent No.2, i.e. The Assistant Registrar of Trade Marks, Ahmedabad-9, on 4-11-1991. The Applicant No.1 had filed the counter statement on 23-2- 1992. Thereafter, the Respondent No.1 was required to file evidence in support of its Rectification Application but did not file the evidence in support of their petition and prayed for time on the ground of settlement. On 20th December 1992, an interlocutory petition came to be filed by the Respondent No.1 before the Respondent No.2 for filing the evidence in support of their Rectification Application. The evidence came to be taken and/or recorded on March 31, 1993, and the matter came to be placed and fixed for hearing on 20th August, 1993. The Respondent No.2 passed ex-parte orders on August 24, 1993. According to the Applicants, they were not aware about the said orders or even the date of hearing fixed by the Respondent No.1 because of the negligence on the part of the Trade Mark Attorney of the Applicants/Appellants, namely M/s. Mangla Registration Services, New Delhi. According to the Applicants, the Respondent No.2 had heard the matter exparte and passed orders against the Applicants/Appellants on August 24, 1993, but according to the Applicants, they came to know about this order only when they received a notice by advocates for the Respondent No.1 M/S. Gordhandas & Fozdar dated December 01, 1995. According to the Applicants/Appellants, after the receipt of the said notice, they had tried to contact their Trade Mark Attorney at New Delhi, but had failed to establish any contact with them and ultimately one Shri Anilbhai of the Applicants was required to rush down to Delhi to contact the said Attorney i.e. M/s Mangla Registration Services, but the Applicants had found that the said Trade Mark Attorney were not taking any interest in the matter, and later on they were obliged to have the services of another counsel and Trade Mark Attorney M/s M.P.Mirchandani & Co., and they had also tried to contact M/s Mangla Registration Services at Delhi but that, they had failed to evoke any response. It is further the case of the Applicants that, as there was no response from M/s Mangla Registration Services, M/s M.P. Mirchandani & Co., were required to reply the notice of the advocates for the Respondent No.1 on May 28, 1996 and had informed the that, the Applicants have filed Rectification Application for removal of the Trade Mark registered in favour of the Respondent No.1. The Applicants, according to their case, had also applied for the inspection of the files at the Trade Mark Registry, Ahmedabad, but the files were not available at Ahmedabad branch, and therefore, the Applicants were required to inquire at Trade Mark Registry at Bombay or at Delhi. It is the case of the Applicants that, meanwhile they were served with an order of temporary injunction passed in Civil Suit No. 3066 of 1996 dated July 11, 1996. It is also the case of the Applicants that, they have filed the necessary application to obtain the certified copy of the orders from Trade Mark Registry, Ahmedabad, but till the date of the filing of the application for the Condonation of Delay, the Applicants have not received the same from the office of the Respondent No.2. Thus , it is the case of the Applicants that, there has been a gross misdemeanour and gross inaction on the part of their Attorney, namely M/s. Mangla Registration Services Private Limited and that, because of such gross misdemeanour and gross inaction on the part of their Attorney, they should not be made to suffer.
(3.) This case of the applicants came to be challenged by the Respondents by filing the affidavit-in-reply of one Shri Prakash S. Jain of Bombay. The Respondent No.1 has said that, their rights in the matter have already been crystallised and that, in fact not only one but there are three orders of the Assistant Registrar of Trade Marks passed against the Applicants and that, they have remained unchallenged for a pretty long time of three years. It is urged that, no genuine and/or believable reasons have been sought to be made out and that therefore the delay remains unexplained and that, instead of that, the Applicants have sought to create an excuse for their inaction and indolence by blaming the "so called Attorneys". The Respondent No.1 has further denied that the Applicants came to know of the said orders for the first time "when the papers and the proceedings" in the suit filed by the 1st Respondent i.e. Suit No. 3066 of 1996 came to be served upon them. It is urged that the Applicants who were not bothered when the 1st Respondent served them with the advocate's notice cannot be allowed to take advantage of their indolence and/or deliberate inaction. It is on this basis that it has been submitted by the Opponents/Respondents that the Civil Application for Condonation of Delay requires to be dismissed with costs. The entire case of the Applicants is based upon the reading of the provisions contained in Rule 121 of the Trade And Merchandise Marks Rules, 1959, which runs thus:-