- (1.) THE petitioners in this WP under art.226 dated November 4, 2006 are questioning an order of the Intellectual Property Appellate Board established under s.83 of the Trade Marks Act, 1999.
(2.) THE order is at p.35 of the WP. It is dated August 4, 2006 and was passed in Mumbai by a Circuit Bench of the Appellate Board sitting in Mumbai. With a covering letter dated August 23, 2006 (at p.34) the office of the Appellate Board sent a certified copy of the order to Stadmed (the first petitioner) at its recorded address: 33A Jawaharlal Nehru Road, 11th Floor, Kolkata-700 071, a place within the territories in relation to which this Court exercises jurisdiction under art.226. Stadmed filed an application for Rectification No.BOM-1034 dated January 16, 1995 before the Registrar of Trade Marks, Trade Marks Registry, Central Building, M.K. Road, Bombay-400 020. It wanted removal of a trade mark whose registered proprietor was one Sun Pharmaceutical Industries Ltd., F.P. 145, Ram Mandir Road, Vile Parle (East), Bombay 400 057. By an order dated March 24, 2003 the Deputy Registrar of Trade Marks allowed the Rectification Application and directed removal of the trade mark in question from the register. Feeling aggrieved, Sun Pharmaceutical (the second respondent) lodged an appeal with the Appellate Board. By the impugned order dated August 4, 2006 the Appellate Board allowed the appeal and set aside the order of the Deputy Registrar of Trade Marks, Mumbai dated March 24, 2003. Mr Bachwat appearing for Sun Pharmaceutical has raised the question of jurisdiction of this Court to entertain the WP. He has said that no part of the cause of action on which the WP was filed had arisen within the territories in relation to which this Court exercises jurisdiction under art.226. He has relied on the decisions in Collector of Central Excise v. M.M. Rubber & Co., 1992 Supp (1) SCC 471; Municipal Corpn. of Delhi v. Qimat Rai Gupta & Ors., (2007) 7 SCC 309; Samir Kumar Shill v. Union of India & Ors., 2007(60) AIC 519(Cal.,HC); W.P. No.7030 (W) of 2007 (Heiza Boilers (I) Pvt. Ltd. & Anr. v. Union of India & Ors.) dated July 16 & 20, 2009, Single Bench of this Court; Chemithon Engineers Pvt. Ltd. v. Secy., Dept. of Atomic Energy & Ors., 2011(45) PTC 406(Cal)(DB); and W.P. No.22106 (W) of 2010 (SRRAK-REIPL JV. & Ors. v. Union of India & Ors.) dated January 19, 2011, Single Bench of this Court. Mr Sarkar appearing for the petitioners has submitted that the petitioners rightly invoked the art.226 power of this Court, because the impugned order sent by the Appellate Board in compliance with the provisions of r.21 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 had affected the petitioners in West Bengal where they had received it. His submission is that the cause of action on which the WP was filed ' if not the whole, a substantial part thereof ' had arisen within the territories in relation to which this Court exercises jurisdiction under art.226.
(3.) HE has said that the facts constituting the cause of action and showing that this Court had jurisdiction are contained in para.36 of the WP. Paragraph 36 is quoted below: "36.The impugned order dated 4th August 2006 passed by the respondent no.1 was addressed to and received at the office of the petitioner within the ordinary original jurisdiction of this Honble Court. The effect and consequence of the said order is felt at the office of the petitioner within the ordinary original jurisdiction of this Honble Court. The records relating to the instant matter are further lying in the office of the petitioner within the ordinary original jurisdiction of this Honble Court." Elaborating his argument Mr Sarkar has said as follows. Rule 21 of the rules has created a mandatory statutory obligation of the Appellate Board to serve its order. HEnce until an order, though pronounced by it under r.20, is served, the appeal concerned remains pending and the order cannot be said to be passed and binding on the parties. The pronouncement, without notice, for notice is given only under r.16 and it is only for hearing, does not give rise to a cause of action; it arises only when the pronounced order is served. When law requires service of an order providing a cause of action, receipt thereof is a part of the cause of action. Besides, the petitioners were affected by the order in West Bengal where it was served. Mr Sarkar has relied on the decisions in The State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493; Bachhittar Singh v. State of Punjab & Anr., AIR 1963 SC 395; State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313; Serajuddin & Co. v. The State of Orrissa & Ors., AIR 1971 Cal 414; Umasankar Chatterjee v. Union of India & Ors., 1982(1) CHN 100; Union of India & Ors. v. Hindustan Aluminium Corpn. Ltd. & Anr., AIR 1983 Cal 307; and Bikash Bhushan Ghosh & Ors. v. Novarties India Ltd. & Anr., (2007) 5 SCC 591.;