Monjula Bose, J. - (1.) This is an application, inter alia, for cancellation of registered design No. 148719 dated 1st August, 1979 of the Respondent Nos. 1 and 2 under Section 51A of the Designs Act, 1911. The petitioner is the manufacturer of "Ravi" table fans and contends that it has been manufacturing table fans for several years and in particular earlier than 1st August, 1979 being the date of the impugned design. The petitioner relies upon several advertisements appearing at pp. 106 to 110 of the petition which indicate that advertisements of the impugned design appeared in several newspapers prior to the date of registration of respondents' design on 1.8.79, and thus make the same not a new and an original one. It also appears from p. 24 of the affidavit-in-reply that an advertisement was issued as early as 8.3.75 by the respondents themselves and the said advertisement also supports the petitioner's contention. Be that as it may, long prior to this application for cancellation of the design being taken up, a preliminary point as to the maintainability of the application was urged by the respondents. It was contended that under Section 51A (1) of the Designs Act an application for cancellation of the impugned registration of design is maintainable before the High Court only when an alternative remedy for cancellation has not been availed of by the applicant and inasmuch as the applicant had filed an application for cancellation before the Controller of Patents & Designs which proceedings were subjudice, the present application is misconceived and not maintainable. Secondly, it was contended that an application for cancellation is required to be made within 3 years of the date of registration. This application admittedly made in 1985 while the registration effected as far back on 1.8.1979 is patently barred by limitation under the residuary Article 137 of the Limitation Act, as Section 51(A) (1) (a) does not provide for a specific period of limitation. It is further contended that the petitioner must seek cancellation under Section 51(A)(1)(a) within 3 years from the accrual of the cause of action namely the date of registration and in support of this proposition reliance was placed on the case reported in AIR 1977 SC 282.
(2.) The said preliminary point was argued extensively before the Court and before the judgement was delivered the learned Advocates for the petitioner and the respondents submitted that while delivering the judgement in the main application, it could dispose of the preliminary point involved and two separate judgements are not required to be delivered. As such, the Court had fixed this matter to appear on the list for hearing of the main application for cancellation of the registered design. The matter appeared on the list for several days and on each occassion adjournment was sought by the learned Advocate for the respondents on various grounds. The matter was however part-heard before the Court and adjourned till today. When the matter was called on for hearing today, the advocate-on-record for the respondents appeared and submitted that he had received instructions by phone from Beneras intimating him not to proceed with the application and as such, he prays for leave to retire, which leave was accordingly granted after recording his submissions.
(3.) It thus now appears that the respondent is not opposing the application. This being the position, the Court is nevertheless first required to answer the preliminary issue raised and argued. The point of law urged by the learned lawyer for the respondent, which was heard by this Court, does not appeal to the Court as the Statute specifically contemplates that such an application would be made by "any person" interested "at any time" after the registration of the design and, as such, no time limit can be imposed upon the petitioner for moving such an application to the High Court, whereas under Clause 51(a), sub-clause (b) a time restriction is imposed by the Statute for making similar application to the Controller on either of the grounds specified in sub-clause I and II of clause (a) and necessitate such an application to be made within one year from the date of registration. It is abundantly clear that the Legislature intended that such an application before the Controller should be made within a specified time whereas no such time period was given for making of an application before the High Court. The principle enunciated in AIR 1977 SC 272 has no application to the facts of the instant case. The period of limitation provided in a Special Act- in the instant case the Designs Act providing for an unlimited time and/or the limitations as to the time for making of such an application, override the general law namely Article 137 of the Limitation Act as per Section 29(2) of the Limitation Act and the instant application made in 1985 is well within the time and the contentions made on behalf of the respondents that the application is barred by limitation can not be sustained.;