COD No. 5/2014 in S.R. No. 371/2014/TM/CH. Case: A. Habeebur Rahman Sons Vs S. Jaffer Mohideen and Ors.. Intellectual Propery Appellate Board Cases

Case NumberCOD No. 5/2014 in S.R. No. 371/2014/TM/CH
Party NameA. Habeebur Rahman Sons Vs S. Jaffer Mohideen and Ors.
CounselFor Appellant: K.M. Aasim Shehzad and For Respondents: S. Balachandran
JudgesK.N. Basha J. (Chairman) and Sanjeev Kumar Chaswal, Member (T) (Trade Marks)
IssueLimitation Act, 1963 - Sections 2, 5; Patents Act, 1970 - Section 117B; Trade Marks Act, 1999 - Sections 84, 87, 92, 95, 96
Judgement DateJuly 31, 2015
CourtIntellectual Propery Appellate Board Cases

Order:

K.N. Basha J. (Chairman)

(168 of 2015)

1. This petition is filed seeking to condone the delay of 72 days in filing the appeal and challenging the order of the second respondent herein in dismissing opposition filed by the appellant/petitioner herein.

2. Mr.K.M. Aasim Sheazad, the learned counsel for the petitioner would submit that the petitioner herein had gone for a mini-pilgrimage (Umrah) along with his family to Makkah & Medina on 30th April, 2014 and returned only in the last week of May, 2014 and thereafter he was busy in attending to the admission and pending secretarial work as he was the Honorary Secretary of the New College, Chennai. The learned counsel would further submit that only thereafter in the month of August, 2014 he enquired with the erstwhile counsel relating to the status of their and opposition filed before the second respondent and ultimately came to know about the dismissal of their opposition by passing an order dated 20th February, 2014. The learned counsel would also submit that the impugned order was received only in the second week of May, 2014 and thereafter the petitioner preferred the appeal, which resulted in the delay of 72 days in filing the appeal.

3. The learned counsel would also submit that the delay is neither wanton nor willful but it is only due to the above said circumstances.

4. Mr. S. Balachandran, the learned counsel appearing for the first respondent would submit that the first respondent has filed counter affidavit raising objection for condoning the delay of 72 days in filing the petition on the ground that the mini pilgrimage would not have been taken place during the relevant period. It is further contended that the position of the Secretary is not full time job and that may not be the reason for condoning the delay. The learned counsel would submit the petitioner has not shown sufficient cause for condoning the delay and as such the petition has to be dismissed with costs.

5. We have carefully considered the submissions made by both sides and also perused the affidavit of the petitioner and the counter-affidavit filed by the first respondent.

6. The learned counsel appearing for the petitioner has clearly and categorically stated that the petitioner had undertaken the mini-pilgrimage (Umrah) during the month of April, 2014 and returned only in the last week of May, 2014 and further he being the Secretary and Correspondent of the New College, Chennai he was busy with the administrative work and other incidental work and the process relating to admission for the Academic year 2014-15. It is also contended by the learned counsel for the petitioner that apart from the above said two factors, a considerable amount of time was taken in cogently organizing and perusing the relevant documents pertaining to the instant appeal. The petitioner has verified the opposition filed before the second respondent and subsequently received the order copy and thereafter the petitioner has to discuss with their counsel by perusing the opposition and during the said process the delay was occurred in filing the appeal.

7. It is relevant to refer the decisions of the High Court and the Apex Court in respect of the interpretations "Sufficient Cause" while condoning the delay. The Division Bench of the Madras High Court in a decision rendered on 8.12.2011 in W.P.28033 of 2011 in Schering-Plough Ltd. v. Intellectual Property Appellate Board as held hereunder:--

"5. Prima facie we are of the view that the Appellate Board has not correctly appreciated the reasons for delay disclosed in the affidavit accompanying the delay petition. It was categorically stated in the affidavit filed in...

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