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High Court Of Delhi
HEMLA EMBROIDERY MILLS PRIVATE LIMITED - Appellant
Versus
HINDUSTAN EMBROIDERY MILLS PRIVATE LIMITED - Respondent
First Appeal Order 77 of 1968
Decided On : 02/19/1971
TRADE AND MERCHANDISE ACT, 1958 - SECTION 109(2) - APPEAL AGAINST REGISTRAR'S ORDER - ORDER OR DECISION - STAY OF PROCEEDINGS - JURISDICTION - SECTION 34 OF THE INDIAN ARBITRATION ACT, 1940 - SECTIONS 97 AND 101 OF THE TRADE AND MERCHANDISE ACT, 1958 - POWER OF REGISTRAR TO ADJOURN OR EXTEND TIME - APPEALABILITY OF ORDERS - PRELIMINARY OBJECTION - COMPETENCY OF APPEAL.
Fact of the Case:
The appellant, M/s. Hemla Embroidery Mills (P) Ltd., opposed the registration of three trademarks by the respondent, Hindustan Embroidery Mills (P) Ltd., before the Registrar of Trade Marks. The appellant filed applications for extension of time and stay of proceedings, arguing that disputes concerning the ownership of the trademarks were being arbitrated and that the Registrar should await the outcome of the arbitration. The Registrar rejected the applications, and the appellant appealed to the High Court.
Finding of the Court:
The High Court held that the appeal was not competent because the Registrar's order was not an order or decision under the Trade and Merchandise Act, 1958, or the rules made thereunder. The Court found that the Registrar had no jurisdiction to stay the proceedings under the Act and that the order refusing to extend time was not appealable under Section 101(2) of the Act.
Issues: 1. Whether the Registrar's order was an order or decision under the Trade and Merchandise Act, 1958, or the rules made thereunder? 2. Whether the Registrar had jurisdiction to stay the proceedings under the Act? 3. Whether the order refusing to extend time was appealable under Section 101(2) of the Act?
Ratio Decidendi: 1. The Court held that the Registrar's order was not an order or decision under the Act or the rules because there was no provision in the Act or the rules that entitled the Registrar to stay proceedings. The Court found that the only section that applied for such a purpose was Section 34 of the Indian Arbitration Act, 1940, but the conditions required for the satisfaction of Section 34 did not exist. 2. The Court held that the Registrar had no jurisdiction to stay the proceedings under the Act because he was a creature of the statute and had only the powers that the statute gave him. The Court found that there was no provision in the Act that entitled the Registrar to stay proceedings and that he had no general inherent powers to pass any order in the interests of justice. 3. The Court held that the order refusing to extend time was not appealable under Section 101(2) of the Act because the section expressly barred appeals from orders of the Registrar under Section 101.
Final Decision: The Court dismissed the appeal, holding that it was incompetent and that the Registrar's orders were not appealable.
( 1 ) THIS judgment in F. A. O. No. 75 of 1968 will also dispose of the two connected appeals, F. A. O. Nos. 76 and 77 of 1968.
( 2 ) THE appellant in this case is M/s. Hemla Embroidery Mills (P) Ltd. , whereas the respondent is Hindustan Embroidery Mills (P) Ltd. , The respondent in this case has filed three applications for the registration of three trade marks each of which employs the words HEMLA in different forms, before the Registrar of Trade Marks. It is not necessary for the purpose of this appeal to give the exact descriptions of the Trade Marks involved. The appellant opposed the registration under Section 31 (1) of the Trade and Merchandise Act, 1958 (hereinafter REFERRED TO to as the Act ). Counter statements were thereafter filed by the respondent under Section 21 (2 ). The procedure prescribed by the Act requires that at this stage evidence has to be filed by the appellant. However, before this could be done the present appellant moved stnay applicatns in this said three cases before the Registrar which have been rejected and three appeals have been brought against the three orders passed by the Registrar to this Court. All three orders are in practically identical terms.
( 3 ) THERE were two applications in each of the cases. One application was a request for extention of time in Form No. T. M. 56 and the other was a petition for stay. The ground of which stay was sought was that certain disputes between the parties had been REFERRED TO to arbitration as a result of a consent order passed in the Bombay High Court by Kantawala J. The said reference to arbitration was to two well known selecitors of Bombay and included disputes concerning the ownership of the trade marks involved in the applications for registration. It was submitted that the Award of the Arbitrators which would be given as a result of the agreed reference ordered by the Bombay High Court would be binding on both the parties and conclusively decide the disputes concerning the ownership of the trade marks in question. It was further submitted that there would be great prejudice if the proceedings continued to go on before the Registrar. The application for extention of time on form TM 56 was in the form of a prayer for time being extended till after the hearing and final disposal of F. A. O. No. 223 and F. A. O. No. 224 of 1967, pending in this court.
( 4 ) AT the hearing of this appeal, Mr. Anoop Singh who appears on behalf of the respondent has raised a preliminary objection that the appeal is not competent because of Section 109 (2) of the Act. The said sub-section relates to the jurisdiction of this Court to entertain an appeal against the orders of the Registrar of Trade Marks and is in the following terms :-
"109 (2 ). Save as otherwise expressly provided in sub-section (1) or in any other provision of this Act, an appeal shall lie to the High Court within the prescribed period from any order or decision of the Registrar under this Act or the rules made there-under". The provisions of this sub-section are to be commonly found in numerous other statutes and there appear to be two restrictions on the right of appeal. Firstly, the appeal must be directed against an order or decision of the Registrar and secondly, that order or decision must be under the Act or rules made under the Act.
( 5 ) THE question as to what is "an order or decision" has been the subject matter of several authoritative decisions given under various similar statutes. 1 have been REFERRED TO to Shankarlal Aggarwala and others, v. Shankarlal Poddar and Others. 1 The Central Bank of India Ltd. v. Golak Chand,2 and The Central Bank of India v. Golak Chand3. The test which has been approved in these cases, which are either under the Companies Act or the Delhi Rent Control Act, is that the order against which an appeal is sought should be (i) which affects the rights of the parties and (ii) should not be merely procedural in nature. In other words, the test appears to
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