PRABHU SHANKAR AGARWAL Vs. REGISTRAR OF TRADE MARKS

JUDGEMENT

(1.) The petitioners are the holders of a registered trade mark HALDIRAM BHUJIAWALA with HRB & V logo. A rectification petition under Section 47 of the Trade Marks Act, 1999 (hereafter the Act) read with Section 57 thereof was filed by the respondents 3 to 7 on 9.3.2007 before the Intellectual Property Appellate Board (hereafter the Board) praying for removal of the aforesaid trade mark of the petitioners from the register of trade marks for non-use. The rectification petition was registered as ORA/14/2004/TM/KOL. It is not in dispute that the petitioners have been contesting the rectification petition.

(2.) The Board had fixed 11.11.2009 as the date of hearing of the rectification petition. The petitioners had filed an application for adjournment of hearing on the ground stated therein. Such application, however, was rejected and the Board proceeded to hear the parties and concluded the hearing on that very date and reserved its judgment. On 23.11.2009, the petitioners filed a miscellaneous petition seeking to rely on additional evidence and prayed for an order to take the additional evidence on record prior to decision being given on the rectification petition. The said application was received by the registry of the Board on 30.11.2009. By a communication dated 8.12.2009 issued by the Deputy Registrar of the Board, it was conveyed to the petitioners as follows : I am to refer to your Miscellaneous Petition dt. 23.11.2009 received by the registry on 30.11.2009 and to inform you that since orders are reserved in the above mentioned matter, the Miscellaneous Petition cannot be taken on record. Accordingly, the same is returned herewith. Feeling aggrieved by return of the miscellaneous petition by the Deputy Registrar of the Board, this petition dated 11.1.2010 was presented before this Court praying for, inter alia, the following relief : a) A writ and/or writs in the nature of mandamus do issue calling upon the respondents and/or each of them. i) to act and proceed in accordance with law; ii) to accept the Miscellaneous petition dated 23rd November 2009 filed by the petitioners with the Intellectual Property Appellate Board in ORA/14/2004/TM/KOL; iii) to allow the petitioners to adduce additional documents in ORA/14/2004/TM/KOL iv) to grant proper opportunity of hearing to the petitioners; b) A writ of certiorari do issue calling upon the respondent authorities to produce the records of the case so that after considering the same conscionable justice may be done to your petitioners;

(3.) Mr. Mookerjee, learned senior advocate, representing the petitioners contended that the Deputy Registrar of the Board acted without jurisdiction in returning the miscellaneous petition. According to him, functions and duties of the Deputy Registrar of the Board are specified in Rules 26 and 27 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter the Rules). In terms thereof, he contended, it is the duty of the Deputy Registrar to scrutinize petitions that are filed to ascertain whether the same are in proper form or not. The ultimate decision to entertain or not to entertain a miscellaneous petition is to be taken by the Board upon application of mind. He further contended that in terms of Section 92 of the Act, proceedings before the Board are not to be regulated by the Code of Civil Procedure but by principles of natural justice. The Board not having delivered its judgment, the lis still pends and in the interest of justice it is for the Board to decide whether or not it would take on record the additional evidence sought to be relied on by the petitioners. In particular, it is submitted that the documents that the petitioners seek the Board to take on record as additional evidence are relatable to the questions that were posed by the members of the Board in course of hearing on 11.11.2009 which could not be furnished and, therefore, justice demands that the Board should be directed to consider the desirability of accepting the miscellaneous petition. In support of his submissions, Mr. Mookerjee relied on the following decisions : AIR 1984 Delhi 439, Suresh Kumar vs. Baldev Raj, AIR 1998 Punjab & Haryana 197, Chandgi vs. Mehar Chand & ors. and AIR 2006 SC 1194, Vidyawati Gupta vs. Bhakti Hari Nayak. The respondents 1 and 2 were not represented despite service. The petition was opposed by Mr. Amarjit Singh, learned advocate led by Mr. P.C. Sen, learned senior advocate, representing the respondents 3 to 7. He contended that the Deputy Registrar in returning the miscellaneous petition did not commit any error warranting interference of the Court of Writ. He referred to Rule 27 of the Rules and in particular to clause (ii) thereof to emphasize the point that it is the duty of the Deputy Registrar to decide all questions arising out of scrutiny of appeals and applications before the same are registered. The Board, in the present case, having reserved a judgment on the rectification petition, he contended that there is no hiatus between the two stages of reserving and pronouncing judgment and, therefore, the Deputy Registrar was perfectly justified in returning the miscellaneous petition to the petitioners which is not maintainable.