( 1 ) THIS appeal under Section 109 (2) of the trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act ) has been filed against the order of the Assistant Registrar of Trade Marks, New delhi dated 11/12/1995. The relevant,portion of which reads as under:- proceedings having been taken under Section 21 of the Trade arid merchandise Marks Act, 1958 by the abovenamed Opponents to oppose the registration of the trade mark applied for by the abovenamed Applicants and by reason of operation of cub-section (2) of Section 21 of the Trade and merchandise Marks Act, 1958 the abovenoted application is deemed to have been abandoned.

( 2 ) THE facts and circumstances leading to the said order are that on 11/08/1988 the appellant a partership firm filed an application bearing No. 495853 in Class 9 in respect of Electric wires and cables for the registration of trade mark "seiko" word per se Under the Act. The said application was accepted and advertised by the Trade marks Registry, Bombay in Trade Marks Journal dated 1/05/1994. Respondent No. 1 lodged a notice of opposition Under Section 21 (2) of the Act, to the registrar of the Trade Marks for the said application notice of Which was reeived by the appellant on 8/08/1995. The appellant send their counter statement on Form TM-6 through speed post on 25/09/1995 which was received by the Trade Marks registry on 26/09/1995 but instead of sending a fee of Rs. 50. 00 prescribed under the rules, a fee of rs. 30/- was sent by postal order which fact came to the notice of the appellant s attorney on receipt of a letter of the Trade Marks Registry dated 27th september, 1995. The appellant s attorney vide letter dated 9/10/1995 despatched the counter statement together with the prescribed fee of Rs. 50. 00 which was received in the Registry s Office on 10th october 1995 Respondent No. 2 i. e. Registrar instead of directing Respondent no. 1 to proceed further under rule 53 of the Trade and Merchandise Marks Rules, 1959 abandoned the application of the appellant under sub-section (2) Section 21 of the Act which is alleged to be wrong and without any justification.

( 3 ). Notice of the appeal was issued to the respondents and Respondent No. 1 has put in appearance. I have heard Mr. Rajesh Chadha, Advocate for the appellant and Mr. Ajay Sahni, Advocate for respondent no. 1 and have given my thoughtful consideration to their respective submissions.

( 4 ). Learned counsel for the appellant has assailed the impugned order mainly on the ground that the counter statement was filed within the period of two months as prescribed by sub-section (2) of Section 21 of the Act and that the mere lapse on the part of the appellant or his attorney in not remitting the full prescribed fee of Rs. 50. 00 along with the counter statement in Form TM-6, which was subsequently made good on receipt of letter dated 27/09/1995 from the office of the Registrar of the Trade Marks, was not fatal and the requirement was duly complied with and the Assistant Registrar ought not to have abandoned the application on that score In this regard learned counsel for the appellant has referred to the letter/communication dated 27/09/1995 issued from the office of the Assistant Registrar of trade Marks informing the appellant that the fee of request on Fort TM-6 had been enhanced to Rs. 50. 00 with effect from 9/12/1991 and requesting the appellant to re-submit the request on Form TM-6 with proper fees at the Trade Marks Registry. The attorney of the appellant despatched the request in Form TM-6 with a fee of Rs. 50. 00 from Lucknow on 9/10/1995 which was received in the office of the Registrar of trade Marks only on 10/10/1995. It is also submitted by the learned counsel for the appellant that as per Rule 52 of the Trade and Merchandise Marks rules, 1959 (hereinafter referred to as the Rules ) the counter statement required by sub-section (2) of section 21 of the Act is required to be sent in triplicate on Form