JUDGMENT :

K.S. JHAVERI, J.

1. These appeals arise out of the common judgment and order passed in a group of petitions being Special Civil Applications No. 10329/2007, 1923/2008, 1927/2008 and 1922/2008 decided 01.07.2009 whereby, the said group of petitions was dismissed.

2. The aforesaid group of petitions were filed for quashing and setting aside the orders dated 20.01.2005 and 23.02.2007 passed by the Intellectual Property Appellate Board (for short "the IPAB") in rectification applications filed by respondent no. 3 herein under Section 107 of the Trade and Merchandise Act, 1958. Upon new enactment, the Trade and Merchandise Act, 1958 came to be repealed and the Trade Marks Act, 1999 came into force and the proceedings of rectification applications no. 1 to 4 of 1999 were transferred to the IPAB. By order dated 20.01.2005, the IPAB directed the Registrar of Trade Marks to remove the entry of all the four registered trade marks of the appellant, original petitioner. The review applications, along with the applications for transfer and misc. applications for stay of the order dated 20.01.2005, were rejected vide order dated 23.02.2007. Both these orders were challenged before the learned single Judge unsuccessfully.

3. Mr. Mehul Suresh Shah learned counsel appearing with Mr. Y.J. Jasani for the appellant, original petitioner, submitted that the learned single Judge did not appreciate the matter in its proper perspective. He submitted that the IPAB has not granted sufficient opportunity to the appellant to lead evidence nor did the IPAB made its stand clear as to whether it intends to decide the rectification application proceedings de novo or from the stage at which they were transferred by the High Court under section 100 of the Trade Marks Act, 1999 (for short "the Act") to it. He submitted that pursuant to the transfer of proceedings under section 100 of the Act, the IPAB straightaway fixed the final hearing without granting any opportunity to the appellant to present its case. The learned single Judge did not appreciate the provisions of the Act in its proper perspective and erred in dismissing the group of petitions. He submitted that Section 92 of the Act empowers the IPAB to examine the evidence on record, which was not exercised.

3.1 Learned counsel for appellant contended that the learned single Judge ought to have held that the proceedings before the IPAB were not original rectification proceedings under section 125 of the Act but were transferred proceedings under section 100 of the Act and therefore, it was obligatory on the part of the IPAB to first decide as to whether it intends to proceed with the matter de novo or at the stage at which it was transferred by the High Court.

3.2 Learned counsel further submitted that the rectification applications filed by respondent no. 3 were time barred as they were filed under the old Act. However, neither the IPAB nor the learned single Judge appreciated the above aspect of the case. He, therefore, submitted that the impugned judgment and order passed by the learned single Judge deserves to be quashed and set aside.

4. Mr. Jagannadha Rao learned counsel appearing for respondent no. 3 submitted that in the rectification proceedings, the appellant, original petitioner, had filed affidavit in reply defending its case. Therefore, it was not that sufficient opportunity was not granted to the appellant. He submitted that the titles of the rectification applications mentioned that the same was under Sections 9, 11, 46 and 56 r/w. Sections 107 and 108 of the Act. He supported the impugned judgment passed by the learned single Judge and submitted that the learned single Judge has not committed any error warranting interference of this Bench.

5. We have heard learned counsel for both sides and have perused the impugned judgment as also the records of the case. The main contention raised on behalf of the appellant is that the IPAB had not afforded proper opportunity to the appellant to defe