Appeal filed within limitation but defective for want of impugned order copy; after IPAB abolition and IPD transfer, refiling with certified copy treated as rectification, not delay; condonation petition closed.
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CMP.No.8633 of 2024 and CMA(PT).SR.No.87706 of 2023
Dr.ANITA SUMANTH,J.
Mr.S.Janarthanam, learned Senior Panel Counsel accepts notice for the respondent and is armed with sufficient instructions to enable the closure of this petition. The prayer in the petition is for condonation of a period of 351 days in filing of this appeal.
2.The defence putforth by learned Senior Panel Counsel is by reference to the delay in filing. The impugned order is dated 10.03.2022. The appeal was filed by the petitioner on 06.06.2022 within the stipulated period of 90 days as provided under Section 117-A of the Patents Act, 1970. Admittedly, the appeal was not accompanied by a copy of the impugned order. With the abolishment of the Intellectual Property Appellate Board, the matter stood transferred to the file of this Court and was taken up for numbering by the Registry only on Notification of the Intellectual Property Division (IPD) of this Court on 05.04.2023.
3.Upon processing of appeal, an objection was issued by the Registry of the IPD of this Court on 09.06.2023 requiring the appellant to re-file the appeal in accordance with the IPD Rules. The appeal was refiled on 07.07.2023 accompanied by a certified copy of the impugned order.
4.The Registry yet again raised an objection in November 2023 calling upon the petitioner to file an application for condonation of delay as the appeal, originally filed on 06.06.2022 before the IPAB, was defective. Hence, this application.
Dr.ANITA SUMANTH,J.
5.The trajectory of events as above have been duly considered. The appeal has
admittedly been filed on 06.06.2022 within the statutory period of limitation, albeit with a defect that the impugned order had not been filed along with the same. This is a curable defect and with the filing of the certified copy by the petitioner, stands
rectified.
6.I am thus of the view that the subsequent re-filing of the appeal on 07.07.2023 can be viewed as a measure of rectification of defect and there is really no delay warranting condonation.
16.04.2024
vs
CMP.No.8633 of 2024 and CMA(PT).SR.No.87706 of 2023
1 issue framed by the court
Whether the delay of 351 days in re-filing a defective appeal under the Patents Act warrants condonation.
1 provisions across 1 enactments
Petitioner
Respondent
Anita Sumanth
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
