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Gujarat High Court
Judgename :RAVI R.TRIPATHI
WYETH HOLDINGS CORPN. - Appellant
Versus
CONTROLLER GENERAL OF PATENTS, DESINGS AND TRADE MARKS - Respondent
SPECIAL CIVIL APPLICATION 5042 Of 2006
Decided On : 08/08/2006
Whether period of one month for action to be taken is mandatory in nature.
Head Note :
Trade Marks Act, 1999 - Section 21(1) to (4), Sections 131(1),(2) & (7) and 157 - The Trade Marks Rules, 2002 - Rules 50, 50(1) and 50(2)(3) and 105 - Action to be taken - Period of one month prescribed - In absence of action within period - Order to treat opposition abandoned - Sustainability - Finding of - It is contended on behalf of petitioners that Rule 50(2) providing time limit for action is directory and, therefore, Assistant Registrar ought have passed order of extension of time on application and affidavits submitted by petitioners - While Respondent No. 4 has submitted that rule is mandatory, therefore, in view of no action taken by petitioner within prescribed time impugned order passed by Respondent No. 2 is legal and proper - Considering the various authorities on the point Court held that in view of the nature of the prayer made there is no question of any alternative remedy being available to the petitioners - Court applying principle of harmonious construction in view of Section 131 of the Act held that Rule 50(2) is to be read as directory and not mandatory - It shall not cause any injustice to any party - On the contrary it will be serving the interest of justice - In view of this Assistant Registrar is not required to refuse extension of time when he finds it necessary to be granted in appropriate cases - Petition is therefore, allowed holding Rule 50(2) as directory and Assistant Registrar have discretion in appropriate cases to extend the time limit - Court, therefore, setting aside impugned order remitted back matter to appropriate authority for its consideration afresh.
Held :
In view of the settled legal position that subordinate legislation cannot travel beyond the scope of main legislation and having regard to the provisions of Section 131 which provides for extension of time, this Court has only two options, either to declare Sub-rule (2) of Rule 50 as ultra virus the Act or by employing principle of harmonious construction, to read Sub-rule (2) of Rule 50 to be a directory one.
In the considered opinion of this Court, there is no reason much less a compelling reason for which the first option should be exercised and the Rule be struck down by holding it to be mandatory. As against that, it is a well settled position of law that principle of harmonious construction should be pressed into service and Sub-rule (2) of Rule 50 be read as directory. This Court is of the opinion that by declaring Sub-rule (2) of Rule 50, directory, no injustice or prejudice is going to be caused to any party. On the contrary, it will be serving the interest of justice. Hence, second option is exercised. Sub-rule (2) of Rule 50 is held to be directory in nature. [Para 26]
However, it is clarified that holding Sub-rule (2) of Rule 50 to be directory does not take away the powers of the Assistant Registrar to refuse extension of time in a given case when he finds that there is no substance in the grounds on which the extension of time is sought for. As against that, to hold Sub-rule (2) of Rule 50 as mandatory, will devoid the Assistant Registrar of his power to exercise discretion in appropriate cases. This Court is of the opinion that the first option, empowering the Assistant Registrar to exercise the discretion in appropriate cases on the merits of the grounds put forward for extension of time, is the one to be preferred. [Para 27]
Law Laid Down :
Subordinate legislation cannot travel beyond the scope of main legislation.
Conclusion :
In view of provision under the Act Court applying harmoneous construction to Rule 50(2) of the Rules prescribing one month period for action to be taken held directory and not mandatory - Assistant Registrar shall have power to exercise discretion in appropriate case on merits for extension of time.
Case Law Analysis :
Salem Advocate Bar Association, Tamil Nadu vs. Union of India, 2006 (2) GLR 1312 [Para 15];; Shaikh Salim Haji Abdul Khayumsab vs. Kumar & Ors., 2006 (1) SCC 46 [Para 16];; Hastimal Jaim Trading as Oswal Industries vs. Registrar of Trade Marks & Anr., 2000 PTC 24 (FB) [Para 17].-Relied on.
Cases Referred :
Asian Paints Ltd. vs. Registrar of Trade Marks & Anr., 2005 (30) PTC 444 (IPAB);; Hindustan Lever Ltd. vs. Sunrider Corporation & Anr., 2006 (32) PTC 287 (IPAB);; Union of India vs. Kamlakshi Finance Corporation Ltd., 1991 (55) ELT 433 (SC);;
Decided in Favour of :
Appellant
Petition Allowed
( 2 ) THIS very board in yet another matter of HINDUSTAN LEVER LTD. VS. SUNRIDER CORPORATION AND ANOTHER, reported in 2006 (32) PTC 287 (IPAB) has again observed that:"in this case we find that the operative part of the order runs into seven lines. A quasi judicial authority should shun such a practice which is abhorrent to the principles of natural justice. All the relevant facts of the case should be brought out in the order and the reasons for arriving at the conclusion be discussed in the order. "
( 3 ) BEFORE I deal with the merits of the matter, the judicial conscience warrants me to discharge an unpleasant duty. Mr. P. M. Thakkar, learned senior counsel for the petitioner invited my attention to the fact that a decision of the IPAB in the matter of Asian Paints (supra) was cited before respondent No. 2 " the Assistant Registrar before he passed the impugned order. But, still, he has passed the order impugned overlooking a binding decision of IPAB. That being so, this Court called upon learned advocate for respondent Nos,1, 2 and 3 to file an affidavit, so that it may not be said that before passing an order against respondent No. 2, an opportunity was not given. It is shocking that an Assistant Registrar has filed an affidavit which shocks the judicial conscience. The Assistant Registrar " respondent No. 2 in his affidavit affirmed on 05. 08. 2006 has admitted that the decision of IPAB was cited before him " respondent No. 2 at the time of passing of the order under challenge in this petition. Paragraph No. 4 (c ). of the affidavit in reply reads as under:"with respect to the binding decision of IPAB delivered in February, 2006, which was required to be followed by me in the judgment passed by me after February, 2005 (sic " 2006), I humbly state and submit that I have observed in my reported judgment, 2006 PTC 32 (REGISTRAR) at para 63 as follows:"the said decision of the Hon ble IPAB was based on what was argued before it on filmsy (sic " flimsy) ground without taking into consideration the drastic change of fundamental characters in Rules, and clear, specific and imperative language and intent of the Legislature, and the basic principles of law/binding precedent laid down by the Hon ble Apex Court and the conduct of the opponent. Therefore, with immense respect, the said decision being the decision in personam is applicable to the parties involved therein. "further, at para 68 of the said Affidavit (sic 0 judgment), it was observed-"as far the reliance placed on the decision of Hon ble IPAB by the Ld. Advocate for the petitioner/opponent, I am of the view that the facts and circumstances in the case before the Hon ble Board are entirely different from the facts of the case on hand and as such as per ratio land down by the Hon ble Apex Court in the case AIR 1975 SC 915 (Supra) and other cases referred to herein above, the decision of the Hon ble IPAB would not help the petitioner. "
( 4 ) RESPONDENT No. 2 " the Assistant Registrar has an audacity to file an affidavit and declare on oath
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