S. Usha, J. - (1.) MISCELLANEOUS petition has been filed by the Respondent in the ma(Sic) rectification application seeking the direction of this Appellate Board to dismiss the main rectification application with costs.
(2.) THE grounds of the miscellaneous petition are that the Respondent her(Sic) came to know of the registration of the Petitioner from the copy of the plaint file(Sic) in S. No. 10 of 2004 in Delhi High Court. The Respondent has filed this instant rectification application as they have been facing several litigations against the Petitioner. The provisions of Section 124 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) has been quoted. The Petitioner has quoted the observation of the Delhi High Court in the case of Astrazeneca UK Limited and Anr. v. Orchid chemicals and Pharmaceuticals Ltd.,, 2007 (34) PTC 469 and has state that prior permission from the Civil Court is to be obtained to file a rectification application. The procedure has not been followed and hence the main application be dismissed. The criminal proceedings are pending. The Respondent has no (sic)roached this Court with clear hands. In the interest of justice, equity and good (Sic)science the main rectification application be dismissed at the threshold. The Respondent herein filed their counter to the main application. The miscellaneous application has been filed only to drag on the proceedings being heard (Sic)nd hence not maintainable. In the instant matter, in a writ petition before the Delhi High Court against the orders of this Appellate Board in a miscellaneous petition, the Delhi High Court has directed that the main rectification application be disposed of within nine months from the date of the order. Having not raised the issue of non -maintainability before the High Court, now to raise the issue by filing a miscellaneous petition is not maintainable as the Hon'ble High Court with the (Sic)onsent of the Petitioner directed that the main rectification application be heard and decided. The judgment of this Board relied on by the Petitioner is also not applicable as they are totally different.
(3.) WE have heard both the counsel during the Circuit Bench sitting at Delhi on 04.02.2010 where learned Counsel Shri Sudharshan Kumar Bansal with Saurabh Kapoor appeared for the applicant and learned Counsel Shri Shailen Bhatia appeared for the Respondent.;