CM (M) 428/2021

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Reserved on: 14^th July, 2021

Pronounced on: 6^th August, 2021

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CM (M) 428/2021, CM APPL.20526/2021 (by the petitioner u/S

151 CPC for summoning of the subject matter suit)

PARVEEN KUMAR GUPTA

.....Petitioner

Through:

Mr. S.K. Bansal and Mr. Ajay

Amitabh Suman, Advocates

Versus

RAVI CHADHA AND ORS.

.....Respondents

Through:

Mr. Ashish Deep Verma, Ms.

Kamya Ritu Verma, Mr. Vijay

Singh and Ms. Bharti Sharma,

Advocates

CORAM:

HON'BLE MS. JUSTICE ASHA MENON

J U D G M E N T

[VIA VIDEO CONFERENCING]

1.

This petition has been filed under Article 227 of the Constitution of

India seeking an order to quash and set aside the impugned order dated 6^th

April, 2021 passed by the learned ADJ-02, Central Delhi, Tis Hazari

Courts, Delhi; allow the application under Section 5 of the Limitation

Act, 1963 dated 30^th December, 2020 filed by the petitioner; and, further

allow the Review Petition under Section 114 of the Code of Civil

Procedure, 1908 (“CPC”, for short) dated 22^nd January, 2018 filed by the

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CM (M) 428/2021

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petitioner in Suit bearing CS No.312/2015, titled “Parveen Kumar Gupta

v. Mr. Ravi Chadha & Ors.”, pending before the learned Trial Court.

2.

The petitioner is aggrieved on account of the fact that his suit,

which he had filed against the defendants for infringement of his

proprietary trade mark “RACER” as also passing off their goods as that

of the petitioner and other reliefs, was stayed by the learned Trial Court

vide order dated 6^th March, 2017. This order, he challenged, by way of

CM (M) 737/2017, which was disposed of vide order dated 6^th December,

2017 permitting the petitioner to withdraw that petition and granting

liberty to approach the Tribunal (sic.) by Review Petition. Thereafter, the

petitioner filed a Review Petition, but the learned Trial Court was of the

view that the application for review had been filed beyond the period of

limitation. As a result, the petitioner filed an application under Section 5

of the Limitation Act for condonation of delay on the ground that time

had been spent before the Hon’ble High Court in pursuing the CM (M)

petition. However, the learned Trial Court rejected the application under

Section 5 of the Limitation Act and observed that since the High Court,

while disposing of the CM (M), had not commented on limitation, no

ground for condonation of delay was made out. As a result thereof, the

Review Petition was also dismissed.

3.

Mr. S.K. Bansal, learned counsel for the petitioner has relied upon

the judgment of this court in J. K. Oil Industries v. Adani Wilmar

Limited,2018 SCC OnLine Del 9367to submit that when a suit was filed

for infringement of trade mark as also for passing off, the filing of a

rectification petition before the Intellectual Property Rights Board

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CM (M) 428/2021

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(“IPRB”, for short) would result in the stay of the suit as far as

infringement of trade mark was concerned under Section 124 of the Trade

Marks Act, 1999, but that suit with regard to passing off was to continue.

Hence, it was prayed that the review of the order dated 6^th March, 2017

be allowed and the suit be directed to be continued qua the passing off.

4.

Mr. Ashish Deep Verma, learned counsel for the respondents, on

the other hand, submitted that the court was empowered, even without

objections being taken, to satisfy itself regarding limitation, when any suit

or application or appeal is filed before it. Therefore, merely because the

respondents had not raised such an objection, would not prevent the court

from looking into the issue of limitation. Further, it was submitted that

the application for condonation of delay was filed three years after the

order dated 6^th March, 2017 and the filing of the application for review.

There was no explanation whatsoever for not filing the appl