Decided on January 31,1983



S.S.Chadha - (1.)THIS petition is under Section 109 (2) of the Trade & Merchandise Marks Act, 1958 read with Rule 121 of the Trade & Merchandise Marks Rules, 1959, impugning the decision dated June 16,1982 of the Deputy Registrar Trade Marks authorised under Section 4(2) of the said Act. Notice to show cause was issued as to why the petition should not be admitted. Original records were also called for.
(2.)IN reply to the show cause notice the respondents have raised an objection that the appeal is barred by time. The appeal is against the order of the Registrar dated June 16, 1982 and was filed on October 10, 1983. A period of three months is prescribed by Rule 121 of the said Rules. An affidavit is filed by Shri B. S. Gupta, advocate-seeking condonation of delay in filing the appeal.
I have gone through the affidavit of Shri B. S. Gupta, advocate and the records received from the Registrar. The case of the respondents is that the copies of the judgment were sent to Shri Anoop Singh, advocate counsel for respondents and to M/s. Sherry Trade Mark Co. A-12/5, R.P. Bagh, Delhi, counsel for the petitioners vide memo Nos. 2619 and 2620 dated June 21, 1982 under registered covers. A photostat copy of the memo has been placed on the record. It gives the correct address of the counsel for the petitioners. The petitioners in the affidavit of Shri B. S. Gupta state that the decision of the Registrar came to the knowledge of the petitioners in Suit No. 248/83 when copies of plaint and other documents were handed over to Shri Gupta on March 2,1983. The affidavit further states that Shri Gupta applied for obtaining the certified copy of the order and decision on March 1, 1983 and the same were forwarded to him on September 22, 1983 and the appeal was filed on October 10, 1983.

The copy of the application on dated March 2, 1983 addressed to the Registrar is on the record of the Registrar. It states. "Kindly supply me a copy as I have not received the same or my minor son has misplaced it, if he has received it.......". Counsel for the respondents by letter dated November 3, 1983 addressed to the Registrar sought confirmation at to when the copy of the order was sent to the counsel for both parties. The Examiner of Trade Marks wanted to check up the position from the Post Master General as to when registered letter No. 2620 dated June 21, 1982 in the name of Sherry Trade Mark Co. A-12/12/5, R. P. Bagh Delhi was delivered. There is no reply of the Post Master General.

From the facts noticed above it is clear that the copy of the order of the Deputy Registrar dated June 16, 1982 was sent to the parties by registered post on June 21, 1982. The letter sent to the petitioners by registered post was addressed in the name of M/s. Sherry Trade Mark Co. A-12/5, R.P. Bagh, Delhi, which is the full and correct address of the petitioners counsel. The registered letter has not been returned undelivered to the Registrar. The presumption is that it was duly delivered to the addressee. Secondly the counsel for the petitioners in the letter dated March 2, 1983 is not stating categorically that letter was not received there is an implied admission. Thridly, there is no explanation from September 22, 1983 to October 10, 1983. When a period of limitation expires a valuable right vests in the opposite party and each days's delay in coming to the Court has to be explained.

Reliance on Radha Kishan Khandelwal v. Assistant Registrar of Trade Marks and others AIR 1969 Delhi 324 in mis-placed In that case the knowledge came to the applicant in the last week of May 1968 when he came to know that his name had been excluded and thereafter the applicant there was naturally keen to know himself about the reasons therefor but respondents 1 and 2 declined to state anything and supply the copy thereof. It was on these facts that this Court condoned the delay in filing the appeal. The fact in this case are such which does not pursuade me to give any indulgence to a party who does not came to the Court with clean hands and state true and correct facts.

For all these reasons I am not be inclined to condoned the delay. C. M. (M) 234/83 is dismissed.


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