Procedural rules must not defeat substantive rights; an affidavit initially filed without attestation due to pandemic circumstances is considered timely, preventing application abandonment.

ORDER :

N. Anand Venkatesh, J.

This appeal has been filed against the order dated 04.07.2025 passed by the 1^st respondent dismissing the interlocutory petition filed by the appellant dated 08.10.2024 in the opposition proceedings bearing No.1019941 in Application No. 4015733 in class 35 and declaring the said application as abandoned and for a consequential direction to the 1^st respondent to take on record the attesting and singed affidavit of evidence and to hear the opposition on merits and pass orders.

2. Heard Mr.Rajesh Ramanathan, learned counsel for the Appellant and Mr.M.Karthikeyan, learned Standing counsel for 1^st respondent and M/s.Gladys Daniel, learned counsel for 2^nd respondent.

3.The Appellant is engaged in the manufacturing and production of packaged snacks and ready to eat food products under the name and style of “MODERN KITCHENS’ Delite in Every Bite”

The appellant filed application No.4015733 in class 35 for registration of the said mark on 03.12.2018 claiming use since 09.05.1984. The application was published in the trademark journal dated 02.09.2019 for third party opposition.

4. The 2^nd respondent filed an opposition on 12.12.2019 under opposition No.1019941. The appellant filed their counter statement on 07.02.2020. Notice for counter statement was served upon the opponent by the Registrar on 10.02.2020. The Affidavit of evidence in support of opposition was filed on 06.04.2020 along with documents under Rule 45 of the Trade Mark Rules, 2017 (hereinafter referred to as the “Rules”).

5. Due to Covid Pandemic, the appellant filed affidavit of evidence in support of the application under Rule 46 without attestation or signature of the authorised signatory on 01.06.2020. The appellant also undertook to file the signed and attested affidavit under Rule 46 as and when directed by the 1^st respondent. A reply affidavit of evidence was filed by the 2^nd respondent on 31.07.2020.

6. There was no progress after the reply affidavit of evidence was filed by the 2^nd respondent and the proceedings went into hibernation. It was revived by the appellant by filing an interlocutory application after paying the fees of Rs.40,000/- under Form TM-M on 08.01.2024. In the meantime, one Mr.Annappa Pai, who was the authorised signatory in the earlier affidavit filed for evidence in support of the application, died. Hence, the authorised signatory was changed and one P. Sudheendra Kamath was the signatory to the affidavit at the time of filing the interlocutory application along with the relevant documents.

7. The 1^st respondent issued notice and directed both parties to address their arguments in the interlocutory application on 19.06.2025. The 1^st respondent through the impugned proceedings dated 04.07.2025 dismissed the interlocutory application and further declared that Application No.4015733 as abandoned for failure to comply with Rule 46 of the Rules. Aggrieved by the same, the present appeal has been filed before this Court under Section 91 of the Trade Marks Act , 1999 (for brevity hereinafter referred to as the ‘Act’).

8. The reasons assigned by the 1^st respondent for the rejection of the interlocutory application was that the evidence affidavit that was filed on 01.06.2020 was neither signed nor attested and therefore, it cannot be construed as an affidavit in proper format provided under the Rules. The 1^st respondent also took into consideration the orders passed by the Apex Court during the pandemic period wherein the period of limitation was extended for all proceedings and ultimately, the Apex Court held that in cases wh