Z.S. Negi, Chairman - (1.) THE two appeals above are under Section 109 of the Trade and Merchandise Marks Act, 1958 against the orders dated 30.1.2003 and dated 14.2.2003, respectively, passed by the Assistant Registrar of Trade Marks dismissing the opposition and refusing to take the notice of opposition on record. During the pendency of the appeals, the appellant has filed two miscellaneous applications, each being M.P. No. 108/2008 and M.P. No. 110/2008 in TA/62&63/TM/MUM, respectively.
(2.) In the miscellaneous applications, both being pari materia replica of each other, it is stated that the appellant's case through out has been that the respondent No. 1 has manipulated records to create a case based on false user and that it has through the right to information applications collected certain materials in respect of respondent No. 1 and now the appellants seeks permission to file the additional affidavit with those documents/materials as additional evidence. It is alleged that the respondent No. 1 has deliberately concealed material particulars and approached the Registrar of Trade Marks with unclean hand and made false statement of user before him. Averment is made that at the time of preferring the appeals, the appellant was not in possession of the documents presently sought to be placed on record, whereas the respondent No. 1 was always aware of the same though it sought to camouflage the same. The appellant has stated that the present application is made with bona fide and for genuine reasons and the documents sought to be filed along with the affidavit are otherwise very relevant and necessary for proper adjudication of the matter. It is urged that in the interest of justice, equity and good conscience, the additional evidence may not be shut out and is taken on record. The respondent No. 1 filed reply to the miscellaneous applications denying the material averments made in the applications and stating that the applications are beyond the scope of statutory provisions, frivolous, vexatious, founded with mala fide and ulterior motive, and without any merit. It is stated that the respondent No. 1 categorically deny the allegations, in particular that the respondent No. 1 manipulated records to create a case based on false user or approached the Registrar with unclean hands or suppressed any material facts or documents relevant to the proceedings. It is submitted that collecting copies of the documents through the right to information application is a deliberate attempt of appellant to project that it had no prior knowledge about those documents and thus to mislead this Appellate Board. The documents sought to be filed are irrelevant to the proceedings and in any event all along the proceedings right from the lower tribunal up to present proceedings, the documents referred to by the appellant were within its knowledge and at no point of time the appellant whispered about these documents in its pleadings and apart from this, the documents are old and most of them are forming part of the records of the proceedings and not required at this stage of proceedings. It is further stated that the present application, even otherwise, is not maintainable at this highly belated stage and in contravention of Rule 8 of the Intellectual Property Appellate Board (Procedure) Rules, 2003. The present application is against the principles of allowance of further evidence and further evidence is permissible only to put forth the subsequent events and happenings before the court/tribunal. Therefore, the question of taking them as further evidence does not arise as the appellant was always aware of these documents and should have filed the same by obtaining them from the authorities at the earlier stages of proceedings. It is submitted that the time and again is filing frivolous applications in order to build up the case in this fashion knowing well that the present proceedings are appeal proceedings wherein the Appellate Board has to appreciate the evidence which is adduced in the lower tribunal and not to permit further documents on record, especially which is bound to delay the final disposal of the appeal. The present applications are nothing but yet another attempt to stall the proceedings and to divert the attention of this Appellate Board from the merits of the case.
(3.) THE miscellaneous applications came up before us for hearing on 4.2.2009 when Shri Shailen Bhatia, Advocate, appeared for the appellant and Shri Darius Dalal, Advocate, appeared for the respondent No. 1. In both the miscellaneous applications, the parties and the issues are common, therefore, they were heard together with the consent of both counsel.;