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TMI Blog2013 (2) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to justify as to why the application for amendment was moved after orders were reserved in 1995 while the petitioner filed affidavit of evidence in correct name in January, 1994 itself. - SPECIAL CIVIL APPLICATION No. 7411 of 2010 - - - Dated:- 20-1-2012 - MR. BHASKAR BHATTACHARYA AND MR. J.B. PARDIWALA JJ. Appearance: DR RAJESH H ACHARYA for Petitioner(s): 1, NOTICE SERVED for Respondent(s): 1 - 2. MR PARTHIV B SHAH for Respondent(s): 1, NOTICE NOT RECD BACK for Respondent(s): 3, CAV JUDGMENT (Per: HONOURABLE MR.JUSTICE J.B. PARDIWALA) 1. This petition under Articles 226 and 227 of the Constitution of India has been preferred by the petitioner challenging an order dated January 7, 2010 passed by the respondent No.3-Intellectual Property Appellate Board at Chennai (hereinafter referred to as 'the Board'), whereby the Board allowed the appeal preferred by the respondent No.1 herein against the order dated February 6, 2004 passed by the Assistant Registrar of Trade Marks, thereby dismissing the Opposition No.AMD-544 and allowing registration of Application No.445245 in Class III under the provision of the Trade and Merchandise Marks Act, 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing prescribed amendment application. 2.9 The matter was finally argued and heard before the Registrar of Trade Marks at Ahmedabad (hereinafter referred to as 'the RTM'). The respondent No.1 took a specific objection to inherent contradictions in the application and counter statement on one hand and the evidence of the petitioner on the other hand. 2.10 On January 24, 1995 and February 18, 1995, the petitioner-original applicant filed two amendment applications on Form TM-16 after the matter was finally heard. 2.11 On March 13, 1995 the RTM allowed the opposition of the petitioner and refused registration to application under No.445245 in Class III. 2.12 In the meanwhile, on April 10, 1995 the petitioner preferred another application afresh for registration of the same trade mark under No.662133 in Class III claiming the benefit of same user since January 01, 1985. 2.13 The petitioner assailed the order dated March 13, 1995 before this Court under Section 109 of the Act, 1958 and pleaded that the application was filed in a wrong name due to inadvertence and the proprietor of the firm was Shashi Kant instead of Shanti Kumar as mentioned in original application as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can produce the documents attached with this appeal and such other necessary materials to substantiate his say that Shri Shashikant and not Shantikumar is the sole proprietor of M/s.Shashi Industries. Hence, following order: The appeal is allowed. The impugned decision dated 13.3.1995 taken in the matter of Application No. 445245 in Class - 3 rendered by Assistant Registrar of Trade Marks is set aside. The matter is remanded to the said authority with a direction to allow the parties to lead proper evidence in the matter to substantiate their say and to take appropriate decision afresh in accordance with law. There shall be no order as to costs. 2.16 Pursuant to the order of remand passed by the learned Single Judge of this Court, the petitioner instead of complying with the directions to lead evidence, which could have been led only on affidavit in terms of Section 99 of the Act, 1958, preferred another amendment application on December 14, 2000 claiming that M/s. Shashi Industries was a partnership firm of which Shri Shashi Kant and Shri Tushar Vadhar are the partners. We took notice of the fact that the partnership deed is claimed to have been executed in the year 1994, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of evidence which was never clarified by the respondent, instead made an attempt to rectify the same after the matter was heard and orders reserved. The reason was that the change was because of the mistake (typographical error) of the counsel. Even assuming that to be correct, we do not understand how that application can be allowed without giving an opportunity to to the appellant to represent his case. The directions of the Hon'ble High Court have not been complied with. The contention of the first respondent was that they are a partnership firm and brought to our notice the certificate of Registration of firm wherein it bears date as of the year 1994., if that be the case, there is no proof as to how the applicant (first respondent herein) as a partnership firm acquired the proprietary right to the trade mark from the so called Shashikanth the sole proprietor. If there was a change as to the constitution from proprietary concern to partnership concern in the year 1994 then why this was not brought to the notice of the Registrar at the time of hearing the matter or to the notice of the High Court in the appeal. This itself creates a doubt in our mind. 18. In view of the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The petitioner filed the affidavit in response to the directions issued by this Court on February 22, 2011 contending that he applied for certified copies, but the registrar responded by affirming that the file of the matter has been misplaced since the power of attorney was sent to Mumbai and was never received back. The letter of the Registrar further points out that the petitioner was earlier requested in the year 2001 to provide a copy of the file which was not responded to. As the second part of the directions contained in order dated February 22, 2011 were not complied with, this Court again directed the petitioner to comply with the directions and reply as to why this Court should adjudicate the matter, when the second application with correct particulars was already filed in the year 1995. The second affidavit was filed by the petitioner admitting that two fresh applications were filed. 7. The facts, as disclosed above, make it abundantly clear that the order dated January 7, 2010 passed by the Board is absolutely in accordance with law and no error much less an error of law can be said to have been committed by the Board. 8. We are of the view that the Board has ri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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