Jharkhand High Court
Jokhiram Chambers vs The Controller General Of Patents on 25 June, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
----
M.A. No.316 of 2024
—-
Samriddhi Rice Mill Private Limited, a company within the meaning of the
Companies Act, 2013, having its registered office at Unit No.302, 3rd Floor,
Jokhiram Chambers, Jokhiram Lane, Main Road, PO GPO, PS Kotwali,
District Ranchi, Jharkhand, through its Director namely Anand Sekhsaria,
aged about 42 years, son of late Binod Kumar Sekhsaria, resident of Main
Road, Purana Bazar, Chakulia, PO and PS Chakulia, District East
Singhbhum, Jharkhand. …. Appellant(s)/ Objector
— Versus —
1.The Controller General of Patents, Designs and Trade Marks, having his
Office at Boudhik Sampada Bhawan, S.M.Road, Antop Hill, P.O. and P.S
Antop Hill, District Mumbai-400037 (Maharshtra)
2.The Registrar of Copyrights, Copyright office Boudhik Sampada Bhawan,
Plot No.32, Sector-14, Dwarka, P.O. and P.S. Dwarka, District New Delhi-
110078
3.The Deputy Registrar of Copyrights, Copyrights Office, Boudhik
Sampada Bhawan, Plot No.32, Sector-14, Dwarka, P.O. and P.S. Dwarka,
District New Delhi- 110078
4.Senior Examiner of Trade Marks, Trade Marks Registry, having his office
at Intellectual Property Bhavan, Beside Antop Hill Post Office PO and PS
Antop Hill, District Mumbai-400037 (Maharashtra)
5.Dinman Polypacks Private Limited, a company within the meaning of the
Companies Act, 2013, through its Director, having its registered office at
Suite No.406, “Vardaan”, 25A, Camac Street, PO and PS Camac Street,
District Kolkata -700016 (West Bengal) …. Respondents
—-
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
—
For the Appellant(s) :- Mr. Rajiv Kumar Jain, Advocate
For the Respondent No.6 :- Mr. Nitin Kumar Pasari, Advocate
—-
10/25.06.2025 Heard Mr. Rajiv Kumar Jain, the learned counsel appearing on behalf of
the appellant as well as Mr. Nitin Kumar Pasari, the learned counsel appearing
on behalf of the respondent no.6.
2. Notices were issued upon the respondent nos.1 to 6 and it has been
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recorded in the order dated 14.11.2024 that notices were issued upon the
respondent nos.1,4,5 and 6 and those notices have been validly served,
however, on that date report of notice in respect of respondent no.2 was not
received.
3. The office note dated 04.12.2024 further suggest that notices upon the
respondent nos.2 and 3 have been validly served and thereafter this matter was
adjourned on 06.12.2024, 12.02.2025, 05.03.2025 and further on 19.03.2025
and in spite of that, the respondents who have been served, have not appeared
and thereafter the case was further adjourned on 09.04.2025. On 30.04.2025
preliminary objection raised by the respondent no.6 has been decided by this
Court and on that day also the rest of the respondents have not appeared who
have already been served. Identical is the situation today and in light of that,
I.A. meant for condonation of delay is being heard in absence of respondent
nos.1 to 5 and in view of that, I.A. No.9203 of 2024 meant for condonation of
delay has been heard.
4. Mr. Rajiv Kumar Jain, the learned counsel appearing on behalf of
the appellant submits that the said I.A has been filed on behalf of the appellant
for condonation of delay of 506 days which has occurred in filing of the instant
miscellaneous appeal against the order dated 03.01.2023 passed by the Deputy
Registrar of Copy Rights in Diary No.3188/2022-C.O/A. He further submits that
the M.A has been filed for setting aside the order dated 03.01.2023 passed by
the Deputy Registrar of Copy Rights whereby the objection filed by the
appellant challenging the application for registration of Artistic Work by the
respondent no.6 has been dismissed and Copy Right Certificate bearing
Registration No.A-144191/2023 dated 03.01.2023 has been issued in favour of
the respondent no.6. He submits that the proceeding before the Deputy
Registrar of Copy Rights was going on and on 15.12.2022 it was informed to
the parties that another date of hearing in the matter would be fixed. He
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submits that the appellant-herein was under an impression that a further date
will be provided for hearing, however, a soft copy of the impugned order dated
03.01.2023 was communicated to the appellant under the cover of an e.mail
dated 05.01.2023 by the respondent no.3. He submits that the appellant then
immediately by the letter dated January 9, 2023 which was communicated by
the respondent no.3 by an e.mail dated 11.01.2023 and courier delivered on
January 16, 2023 requested the respondent no.3 to review its order dated
03.01.2023 and to buttress his such argument, he refers to Annexure-12 in the
main appeal. He further submits that the respondent no.1 had conducted an
Open-house session on 27.01.2023 and the appellant has attended such Open-
house session and has raised its grievance. He submits that in the said session,
the appellant was advised to forward the grievance to the respondent no.1 on
which the appellant did by letter dated 30.01.2023 and to buttress such
argument he refers to Annexure-13 of the main appeal. He further submits that
no response was received by the appellant from the respondent no.1 and the
request was further forwarded by the communication dated 25.03.2023 and in
spite of that no reply was received from the respondent no.1 and to buttress his
argument, he refers to Annexure-14 in the main appeal. In this background, he
submits that nothing has been communicated then the appellant by the
communication dated 22.06.2023 has requested the respondent no.3 to inform
the way and the manner in which the certified copy of the impugned order
could be availed by the appellant in view of the fact that no form to apply for
the same is prescribed in the statute i.e. the Copy Rights Act, 1957. In spite of
that, no communication was made to the appellant and he refers to Annexure-
15 to substantiate his such argument. He submits that finally on 03.07.2023, a
request was made by the appellant to the respondent no.2 to immediately
make over certified copy of the impugned order dated 03.01.2023 and that
letter was carrying a bank draft of Rs.500/- in favour of the respondent no.2
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being the requisite fees for receiving the certified copy of the impugned order.
The communication dated 03.07.2023 was received in the office of the
respondent no.2 on 06.07.2023, however, even after receiving of the requisite
fee the respondent no.2 took no step towards furnishing of the certified copy of
the impugned order to the appellant and to buttress his argument, he refers to
Annexure-16 of the memo of appeal. He submits that after waiting for certain
period, further the appellant herein requested the respondent no.2 by two
separate letters of even date dated 04.12.2023 again to furnish the certified
copy of the impugned order as well as the certified copy of all documents filed
by the respondent no.6 in connection with Diary No.3188/2022-CO/A and
forwarded demand draft of Rs.3000/- drawn in favour of the respondent no.2
towards fees for furnishing the aforesaid documents. He submits that in that
letter therein also indicated that if there is any shortfall of payment that may be
communicated to the appellant for further needful. He submits that thereafter
for the first time a letter was received by the appellant issued by the Central
Public Information Officer of the respondent no.2 which was signed by the
Central Public Information Officer of the respondent no.2 on 19.12.2023 which
was received by the appellant on 26.12.2023 stating that the demand draft of
Rs.3000/- was inadequate and the appellant herein has been requested to
provide bank draft of Rs.500/-. He submits that pursuant thereto, a further
bank draft of Rs.500/- along with the letter dated 28.12.2023 was sent and
thereafter the impugned order was supplied to the appellant herein on
24.05.2024 under the cover of letter dated 17.05.2024. He submits that after
receiving of the same, the present appeal has been filed on 20.08.2024. He
further submits that all efforts have been taken by the appellant herein for filing
of the appeal within three months, however, belatedly the certified copy of the
impugned order has been supplied and the delay has occurred. He further
elaborates his argument by way of submitting that in light of these
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communications and supply of the C.C on 24.05.2024, 388 days can be safely
minused out of 506 days. He draws the attention of the Court to Sub section 4
of Section 72 of the Copy Rights Act and submits that this is the provision of
appeal which is required to be filed within 90 days from the date of the order.
He submits that, however, Sub section 4 of the said Section clearly states that
the time taken in granting the certified copy of the order shall be excluded in
calculating the limitation. He further submits that in the statute there is no
format for applying the certified copy. He further submits that in Schedule II of
the said Act, certain fees are prescribed, however, there is no fee prescribed for
obtaining the certified copy. He further refers to certified copy contained in the
main memo of appeal and submits that even that certified copy is not in light of
Section 75 of the Bhartiya Sakchya Adhiniyam, 2023. He further draws the
attention of the Court to Section 12 of the Limitation Act, 1963 and submits that
this section is paramateria of Sub section 4 of Section 72 of the Copy Rights
Act. On this ground he submits that sufficient cause has been shown and this
Court can condone the delay in filing of the present appeal. He relied in the
case of Shakuntala Devi Jain v. Kuntal Kumari and Others reported
in1968 SCC OnLine SC 139 and refers to paragraph nos.1,7,8,10 and 11,
which are quoted below:
“1.The respondent Sumat Prashad filed an application for
execution of a final decree in a partition suit. The appellant filed
objections under Section 47 of the Code of Civil Procedure. By an order
dated January 20, 1967 the Subordinate Judge, Delhi, dismissed the
objections. It is common case before us that under the relevant Civil
Rules and Orders the Subordinate Judge, Delhi, was not required to
draw up a formal expression of the decision under Section 47 as a
decree. On March 17, 1967 the appellant filed on appeal against this
order in the Delhi High Court. Along-with the memorandum of appeal
she filed a plain copy of the order and an application praying that the
appeal be entertained without a certified copy of the order. In the
application she stated that she had applied for a certified copy of the
order but the same was not ready and that she would file the certified
copy as soon as it would be ready and available to her. She aded that
she wanted urgent interim relief and would be seriously prejudiced if
she waited for a certified copy. She also filed an application for stay of
execution. On the same date a Bench of the High Court admitted the
appeal, granted an interim stay and directed issue of notice to the
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respondents. The attention of the Court was not drawn to the fact that
a certified copy of the order had not been filed nor was the application
for dispensing with the certified copy moved and an order obtained
thereon. The appeal was registered as Execution First Appeal No. 86 of
1967. The appellant diligently prosecuted the appeal. On October 25,
1967 the respondents raised an objection that the appeal was
incompetent as a certified copy of the order under appeal had not been
filed. On November 3, she filed an application for condonation of the
delay in filing the copy under Section 5 of the Limitation Act. On
November 6, she obtained a certified copy and on the same day she
filed it in Court. On December 22, 1967 the High Court held that as the
memorandum of appeal was not accompanied by a certified copy of the
order, the appeal was incompetent, and that there was no sufficient
ground for condoning the delay in filing the copy. Accordingly the High
Court dismissed the appeal and the application under Section 5 of the
Limitation Act. The present appeal has been referred after obtaining
special leave from this Court.
7. The next question is whether the delay in filing the certified
copy or, to put it differently, the delay in refiling the appeal with the
certified copy should be condoned under Section 5 of the Limitation Act.
If the appellant makes out sufficient cause for the delay, the Court may
in its discretion condone the delay. As laid down
in Krishna v. Chathappan [ILR 13 Madras 269, 271] “Section 5 gives the
courts a discretion which in respect of jurisdiction is to be exercised in
the way in which judicial power and discretion ought to be exercised
upon principles which are well understood; the words “sufficient cause”
receiving a liberal construction so as to advance substantial justice when
no negligence nor inaction nor want of bona fides is imputable to the
appellant.”
8. The record discloses that the appellant made repeated
attempts to obtain a certified copy of the order. She is a pardanashin
lady and her affairs were managed by her husband Ajit Prasad and
sometimes by her son Virendra. On March 2, 1967 she applied for a
certified copy of the order under appeal. The application distinctly
stated that she wanted a copy of the order dated January 20, 1967
dismissing her objections. The application bore the serial number 17542.
The copying department supplied to her a copy of another order passed
by the Court on the same date dismissing Sumat Prasad’s objections to
the appellant’s application for execution. The mistake is solely
attributable to the negligence of the copying department. In her
affidavit the appellant stated that the application for a copy dated
February 17, 1967 was in respect of the order dismissing Sumat Prasad’s
objections. This statement is not correct, but it may well be that having
got a certified copy of the order dismissing Sumat Prasad’s objections
she believed that she had applied for a copy of that order.
10. On March 20, 1967 the appellant filed another urgent
application for a certified copy of the order dated January 20, 1967 and
also copies of two other orders dated February 17, 1967 and May 13,
1966. On this application bearing serial number 19461 the copying
department made a note on March 23, 1967 that the orders dated
February 17, 1967 and May 13, 1966 were not found and the applicant
should be asked to indicate the file whereon the orders were. It is
surprising that the copying department should have asked the appellant
to give this clarification. If the department found difficulty in finding the
orders, it should have contacted the officer in charge of the records who
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would have secured the orders for them. The note did not indicate why a
copy of the order dated January 20, 1967 was not being supplied. The
next note on the application dated March 27, indicates that the
application was returned to the appellant. From the text note dated
April 11, it appears that the clerk-in-charge, copying department,
directed that the application be filed. We may safely presume that
before April 11, the application was re-submitted by the appellant to the
copying department. There is nothing to show that the clarification
asked for was not supplied by the appellant. The department took no
further action on the application and made no effort to supply the
certified copies to the appellant. No ground was given by the
department for not supplying a certified copy of the order dated January
20, 1967. The time for filing the appeal expired on April 20, 1967. On
October 25, 1967 the respondents took the objection for the first time
that the appeal was incompetent. Before that date, the record of the
executing court including the original order appealed from had been
received by the High Court. On October 27, 1967 the appellant made
another application for a certified copy and on November 6, 1967 as
soon as she received the copy she filed it in Court. The appellant made
repeated attempts to procure a certified copy. The failure of the copying
department to supply the copy in spite of those applications contributed
largely to the unfortunate delay in filing it. The appellant cannot be held
responsible for the laches of the copying department. Once her son
actually got the copy but she never received it. The appellant could have
filed another copy before November 6, 1967 had it been supplied to her
by the copying department. We are inclined to accept the statement
that she was under the bona fide impression that the certified copy was
not ready, and that is why it was not supplied to her by the copying
department. It is not a case where it is possible to impute to the
appellant want of bona fides or such inaction or negligence as would
deprive her of the protection of Section 5 of the Limitation Act. We are
therefore inclined to allow her application under Section 5 and to
condone the delay in re-filing the appeal with a certified copy of the
order.
11. In the result, we allow the appeal. The application filed by the
appellant under Section 5 of the Limitation Act is allowed and the order
of the High Court dismissing Execution First Appeal No. 86 of 1967 is set
aside. The appeal is remanded to the High Court so that it may deal
with and dispose of the appeal on the merits. There will be no order as
to the costs of the appeal in this Court.”
5. Relying on the above judgment, Mr. Jain, the learned counsel
appearing for the appellant submits that the fact of that case and the case of
the appellant herein are similar. He submits that the facts disclosed in
paragraph no.10 of that judgment, in that case also the appellant made
repeated attempt to procure the certified copy, however, the copying
department in spite of those applications, not provided the certified copy and
considering that aspect of the matter, the Hon’ble Supreme Court has interfered
to condone the delay and the appeal was remanded to the High Court to deal
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and dispose of the appeal on merit. He further relied in the case of
N. Balakrishnan v. M. Krishnamurthy reported in (1998) 7 SCC 123 and
refers to paragraph no.11 of the said judgment which is given below:
“11.Rules of limitation are not meant to destroy the right of
parties. They are meant to see that parties do not resort to dilatory
tactics, but seek their remedy promptly. the object of providing a legal
remedy is to repair the damage caused by reason of legal injury. Law
of limitation fixes a life-span for such legal remedy for the redress of
the legal injury so suffered. Time is precious and the wasted time
would never revisit. During efflux of time newer causes would sprout
up necessitating newer persons to seek legal remedy by approaching
the courts. So a life span must be fixed for each remedy. Unending
period for launching the remedy may lead to unending uncertainty
and consequential anarchy. Law of limitation is thus founded on public
policy. It is enshrined in the maxim Interest reipublicae up sit finis
litium (it is for the general welfare that a period be putt to litigation).
Rules of limitation are not meant to destroy the right of the parties.
They are meant to see that parties do not resort to dilatory tactics but
seek their remedy promptly. The idea is that every legal remedy must
be kept alive for a legislatively fixed period of time.”
6. Relying on the above judgment he submits that the delaying tactic
has not been adopted by the appellant herein and in view of that, the delay
may kindly be condoned. He further relied in the case of State (NCT of Delhi)
v. Ahmed Jaan reported in (2008) 14 SCC 582 and refers to paragraph
no.11 of the said judgment, which is given below:
“11. “8. The proof by sufficient cause is a condition precedent
for exercise of the extraordinary discretion vested in the court. What
counts is not the length of the delay, but the sufficiency of the cause
and shortness of the delay is one of the circumstances to be taken into
account in using the discretion. In N. Balakrishnan v. M.
Krishnamurthy [(1998) 7 SCC 123 : AIR 1998 SC 3222] it was held by
this Court that Section 5 is to be construed liberally so as to do
substantial justice to the parties. The provision contemplates that the
court has to go in the position of the person concerned and to find out
if the delay can be said to have resulted from the cause which he had
adduced and whether the cause can be recorded in the peculiar
circumstances of the case as sufficient. Although no special indulgence
can be shown to the Government which, in similar circumstances, is
not shown to an individual suitor, one cannot but take a practical view
of the working of the Government without being unduly indulgent to
the slow motion of its wheels.
9. What constitutes sufficient cause cannot be laid down by hard-
and-fast rules. In New India Insurance Co. Ltd. v. Shanti
Misra [(1975) 2 SCC 840] this Court held that discretion given by
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Section 5 should not be defined or crystallised so as to convert a
discretionary matter into a rigid rule of law. The expression
‘sufficient cause’ should receive a liberal construction. In Brij Indar
Singh v. Kanshi Ram [ILR (1918) 45 Cal 94 (PC)] it was observed
that true guide for a court to exercise the discretion under Section
5 is whether the appellant acted with reasonable diligence in
prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal
Kumari [AIR 1969 SC 575] a Bench of three Judges had held that
unless want of bona fides of such inaction or negligence as would
deprive a party of the protection of Section 5 is proved, the
application must not be thrown out or any delay cannot be refused
to be condoned.
10. In Concord of India Insurance Co. Ltd. v. Nirmala
Devi [(1979) 4 SCC 365 : 1979 SCC (Cri) 996] which is a case of
negligence of the counsel which misled a litigant into delayed
pursuit of his remedy, the default in delay was condoned. In Lala
Mata Din v. A. Narayanan [(1969) 2 SCC 770] this Court had held
that there is no general proposition that mistake of counsel by
itself is always sufficient cause for condonation of delay. It is
always a question whether the mistake was bona fide or was
merely a device to cover an ulterior purpose. In that case it was
held that the mistake committed by the counsel was bona fide and
it was not tainted by any mala fide motive.
11. In State of Kerala v. E.K. Kuriyipe [1981 Supp SCC 72] it
was held that whether or not there is sufficient cause for
condonation of delay is a question of fact dependent upon the
facts and circumstances of the particular case. In Milavi
Devi v. Dina Nath [(1982) 3 SCC 366] it was held that the appellant
had sufficient cause for not filing the appeal within the period of
limitation. This Court under Article 136 can reassess the ground
and in appropriate case set aside the order made by the High
Court or the tribunal and remit the matter for hearing on merits. It
was accordingly allowed, delay was condoned and the case was
remitted for decision on merits.
12. In O.P. Kathpalia v. Lakhmir Singh [(1984) 4 SCC 66] a
Bench of three Judges had held that if the refusal to condone the
delay results in grave miscarriage of justice, it would be a ground
to condone the delay. Delay was accordingly condoned.
In Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107] a Bench of
two Judges considered the question of limitation in an appeal filed
by the State and held that Section 5 was enacted in order to
enable the court to do substantial justice to the parties by
disposing of matters on merits. The expression ‘sufficient cause’ is
adequately elastic to enable the court to apply the law in a
meaningful manner which subserves the ends of justice–that
being the life purpose for the existence of the institution of courts.
It is common knowledge that this Court has been making a
justifiably liberal approach in matters instituted in this Court. But
the message does not appear to have percolated down to all the
other courts in the hierarchy. This Court reiterated that the
expression ‘every day’s delay must be explained’ does not mean
that a pedantic approach should be made. The doctrine must be
applied in a rational, common sense, pragmatic manner. When
substantial justice and technical considerations are pitted against
each other, cause of substantial justice deserves to be preferred for-9- M.A. No.316 of 2024
the other side cannot claim to have vested right in injustice being
done because of a non-deliberate delay. There is no presumption
that delay is occasioned deliberately, or on account of culpable
negligence, or on account of mala fides. A litigant does not stand
to benefit by resorting to delay. In fact he runs a serious risk.
Judiciary is not respected on account of its power to legalise
injustice on technical grounds but because it is capable of
removing injustice and is expected to do so. Making a justice-
oriented approach from this perspective, there was sufficient
cause for condoning the delay in the institution of the appeal. The
fact that it was the State which was seeking condonation and not
a private party was altogether irrelevant. The doctrine of equality
before law demands that all litigants, including the State as a
litigant, are accorded the same treatment and the law is
administered in an even-handed manner. There is no warrant for
according a step motherly treatment when the State is the
applicant. The delay was accordingly condoned.
13. Experience shows that on account of an impersonal
machinery (no one in charge of the matter is directly hit or hurt by
the judgment sought to be subjected to appeal) and the inherited
bureaucratic methodology imbued with the note-making, file-
pushing, and passing-on-the-buck ethos, delay on its part is less
difficult to understand though more difficult to approve. The State
which represents collective cause of the community, does not
deserve a litigant-non-grata status. The courts, therefore, have to
be informed with the spirit and philosophy of the provision in the
course of the interpretation of the expression of sufficient cause.
Merit is preferred to scuttle a decision on merits in turning down
the case on technicalities of delay in presenting the appeal. Delay
was accordingly condoned, the order was set aside and the matter
was remitted to the High Court for disposal on merits after
affording opportunity of hearing to the parties. In Prabha v. Ram
Parkash Kalra [1987 Supp SCC 339] this Court had held that the
court should not adopt an injustice-oriented approach in rejecting
the application for condonation of delay. The appeal was allowed,
the delay was condoned and the matter was remitted for
expeditious disposal in accordance with law.
14. In G. Ramegowda v. Spl. Land Acquisition Officer [(1988)
2 SCC 142] it was held that no general principle saving the party
from all mistakes of its counsel could be laid. The expression
‘sufficient cause’ must receive a liberal construction so as to
advance substantial justice and generally delays in preferring the
appeals are required to be condoned in the interest of justice
where no gross negligence or deliberate inaction or lack of bona
fides is imputable to the party seeking condonation of delay. In
litigations to which Government is a party, there is yet another
aspect which, perhaps, cannot be ignored. If appeals brought by
Government are lost for such defaults, no person is individually
affected, but what, in the ultimate analysis, suffers is public
interest. The decisions of Government are collective and
institutional decisions and do not share the characteristics of
decisions of private individuals. The law of limitation is, no doubt,
the same for a private citizen as for governmental authorities.
Government, like any other litigant must take responsibility for the
acts, omissions of its officers. But a somewhat different-10- M.A. No.316 of 2024
complexion is imparted to the matter where Government makes
out a case where public interest was shown to have suffered
owing to acts of fraud or bad faith on the part of its officers or
agents and where the officers were clearly at cross-purposes with
it. It was, therefore, held that in assessing what constitutes
sufficient cause for purposes of Section 5, it might, perhaps, be
somewhat unrealistic to exclude from the considerations that go
into the judicial verdict, these factors which are peculiar to and
characteristic of the functioning of the Government. Government
decisions are proverbially slow encumbered, as they are, by a
considerable degree of procedural red tape in the process of their
making. A certain amount of latitude is, therefore, not
impermissible. It is rightly said that those who bear responsibility
of Government must have ‘a little play at the joints’. Due
recognition of these limitations on governmental functioning–of
course, within reasonable limits–is necessary if the judicial
approach is not to be rendered unrealistic. It would, perhaps, be
unfair and unrealistic to put Government and private parties on
the same footing in all respects in such matters. Implicit in the very
nature of governmental functioning is procedural delay incidental
to the decision-making process. The delay of over one year was
accordingly condoned.”
7. Relying on the above judgment, Mr. Jain, the learned counsel for
the appellant submits that if the sufficiency of the cause is shown delay can be
condoned by this Court. In the above premises he submits that the appellant
herein is having merit in the appeal and the circumstances were beyond the
control of the appellant herein to file the appeal within 90 days in terms of
Section 72 of the Copy Rights Act and in view of that, the delay may kindly be
condoned and the I.A. may kindly be allowed.
8. Per contra, Mr. Nitin Kumar Pasari, the learned counsel appearing on
behalf of the respondent no.6 opposed the prayer and submits that it is an
admitted position that the impugned order is dated 03.01.2023 and the same
was communicated to the appellant herein on 05.01.2023. He submits that
under the statute there is no provision of review and in spite of that the review
has been filed before the authority on 09.01.2023. He further submits that the
certified copy was made available to the appellant herein on 03.7.2023. The
appellant applied for certified copy on 03.07.2023 which was made available on
24.05.2024 and this appeal has been filed on 20.08.2024. He submits that the
appellant has wrongly chosen to file a review in absence of any provision in the
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said statute and in view of that it cannot be said that it was the bona-fide
mistake and he relied in the case of Rajneesh Kumar and Another v. Ved
Prakash reported in 2024 SCC OnLine SC 3380 and relied on paragraph
nos.10 and 11 of the said judgment which are as under:
“10. It appears that the entire blame has been thrown on the
head of the advocate who was appearing for the petitioners in the
trial court. We have noticed over a period of time a tendency on the
part of the litigants to blame their lawyers of negligence and
carelessness in attending the proceedings before the court. Even if
we assume for a moment that the concerned lawyer was careless or
negligent, this, by itself, cannot be a ground to condone long and
inordinate delay as the litigant owes a duty to be vigilant of his own
rights and is expected to be equally vigilant about the judicial
proceedings pending in the court initiated at his instance. The
litigant, therefore, should not be permitted to throw the entire
blame on the head of the advocate and thereby disown him at any
time and seek relief.
11. In the aforesaid context, we may refer to a decision of this
Court in the case of Salil Dutta v. T.M. & M.C. Private Ltd., (1993) 2
SCC 185, wherein this Court observed as under:–
“8. The advocate is the agent of the party. His acts and statements,
made within the limits of authority given to him, are the acts and
statements of the principal i.e. the party who engage him. It is true
that in certain situations, the court may, in the interest of justice, set
aside a dismissal order or an ex parte decree notwithstanding the
negligence and/or misdemeanour of the advocate where it finds that
the client was an innocent litigant but there is no such absolute rule
that a party can disown its advocate at any time and seek relief. No
such absolute immunity can be recognized. Such an absolute rule
would make the working of the system extremely difficult. The
observations made in Rafiq [(1981) 2 SCC 788 : AIR 1981 SC 1400]
must not be understood as an absolute proposition. As we have
mentioned hereinabove, this was an on-going suit posted for final
hearing after a lapse of seven years of its institution. It was not a
second appeal filed by a villager residing away from the city, where
the court is located. The defendant is also not a rustic ignorant villager
but a private limited company with its head office at Calcutta itself
and managed by educated businessmen who know where their
interest lies. It is evident that when their applications were not
deposed of before taking up the suit for final hearing they felt piqued
and refused to appear before the court. May be, it was part of their
delaying tactics as alleged by the plaintiff. May be not. But one thing
is clear they chose to non-cooperate with the court. Having adopted
such a stand towards the court, the defendant has no right to ask its
indulgence. Putting the entire blame upon the advocate and trying to-12- M.A. No.316 of 2024
make it out as if they were totally unaware of the nature or
significance of the proceedings is a theory which cannot be accepted
and ought not to have been accepted.” (Emphasis supplied)
9. Relying on the above judgment, he submits that the appellant was not
vigilant and the delay cannot be condoned and he further relied in the case of
Jharkhand Urja Utpadan Nigam Ltd. and Another v. Bharat Heavy
Electricals Limited reported in 2025 SCC OnLine SC 910 and refers to
paragraph nos.19 and 20 of the said judgment which are as under:
“19. At this stage, we must look into some of the relevant findings
recorded by the High Court. The High Court, in para 18 of its judgment,
framed the following question for its consideration. Para 18 reads thus:
“18. The question for consideration is:
“whether the applicants herein can plead that the period of limitation for
filing the appeal to Commercial Appellate Division of this Court did not
commence at all because the certified copy of the judgment had not been
issued to the applicants by the Commercial Courts?””
20. The High Court, thereafter, proceeded to answer the aforesaid
question as under:
“19. In order to answer this question, we cannot lose sight of the
whole purpose of enactment of the Commercial Courts Act, 2015 i.e., to
provide for speedy disposal of high value commercial dispute.
20. No doubt there was a similar provision in Haryana Consumer
Protection Rules, 1988 framed under the Consumer Protection Act,
1986 which was considered by the Supreme Court in the case of Housing
Board, Haryana (1 supra).
The said provision in the Haryana Consumer Protection Rules, 1988
also provided for communication of the order of the District forum to the
parties free of charge in order to avoid the delay as well as to save the
parties from the burden of expenses that may he incurred for obtaining
the certified copy.
The Supreme Court held that the scheme of the Consumer
Protection Act was to provide for better protection of the interest of the
consumers as a measure for economical and speedy remedy for the
settlement of the dispute and the matters connected therewith and
therefore, the said rule should be understood in a manner so that it would
protect the interest of the parties before the District forum by making it
obligatory on the District forum to provide a copy of the order duly signed
and dated by the members of the Bench; and the period of limitation
prescribed with regard to filing of an appeal under Section 15 of the said
Act therefore, has to be computed as commencing from the date of
communication of the order in the manner laid down in the rules.
It was in that context that it was Held that mere pronouncement of an
order in the open Conn would not be enough, but under the scheme of the
rules copy of the said judgment has to be communicated to the parties
affected by the said order so that the parties adversely affected therefrom
may have a fair and reasonable opportunity of knowing the text, reasons
and contents thereof so as to formulate grounds of attack before the
appellate or before the higher forums. In absence of such communication
of signed and dated order, it was held that the parties adversely affected-13- M.A. No.316 of 2024
by it will have no means of knowing the contents of the order so to
challenge the same and get it set aside by the appellate authority or by
the higher forums.
21. Normally petitioners before the District forums under
the Consumer Protection Act, 1986 are individuals and not corporate
entities like the appellant/instrumentality of the State. So, there is
justification for taking the view as regards petitioners in District forums
that the provisions in the Haryana Consumer Protection Rules, 1988 which
mandated communication of the order of the said forums to the parties
free of charge was to save the parties from the burden of expenses that
may be incurred for obtaining the certified copy.
22. We are afraid that the logic behind the provision contained in
Haryana Consumer Protection Rules, 1988 framed under the Consumer
Protection Act. 1986 cannot be applied to the litigants before the
Commercial Court. For Commercial entities and in particular litigants like
the applicants herein who are the State Government Undertakings, the
expenses of obtaining a certified copy of a judgment of the Commercial
Court would be very small compared to the stakes involves in the
litigation.
23. Therefore, they cannot be put on the same footing as a
petitioner before the District Consumer forum; and the logic of counting
the period of limitation from the date of communication of the order of
consumer forum, cannot be applied to a Commercial dispute to which
Commercial entities are parties.
24. In our opinion. Order XX Rule 1 CPC as amended and made
applicable to the Commercial Courts is to be treated as only directory and
not mandatory. So notwithstanding the provision contained in the
amended Order XX Rule 1 CPC (mandating issuance of copies to the
parties to the dispute through electronic mail or otherwise), if such copies
are not issued within a reasonable time, the parties to the dispute have to
apply for the same, and after obtaining it, prefer an appeal within the
time prescribed in Section 13(1-A) of the Commercial Courts Act, 2015.
25. This is because the speedy resolution of high value commercial
dispute cannot be lost sight of. Such an interpretation would be in tune
with the scheme and object of the Commercial Couns Act, 2015 and any
interpretation of the nature advanced by the counsel for the applicants
would defeat the whole purpose of the object of the Commercial Courts
Act. 2015 to provide for speedy disposal of high value commercial
disputes.
26. Therefore, we reject the contention of the counsel for the
applicants that the period of limitation for filing the appeal to the
Commercial Appellate Division of the High Court would not commence
unless the judgment of the Commercial Court in the Commercial suit was
communicated by the said Commercial Court to the parties.
27. We shall next consider whether the delay of 301 days in filing
this Commercial Appeal can be condone in exercise of power conferred on
this Court under Section 5 of the Limitation Act, 1963.
28. The extent of applicability of Section 5 of the Limitation Act,
1963 to cases falling under the Commercial Courts Act, 2015 fell for
consideration of the Supreme Court in Government of Maharashtra (2
supra).
29. The Supreme Court in Para 19 of it’s judgment in Government
of Maharashtra (2 supra) discussed the statement of objects and reasons
behind enacting of the Commercial Courts Act, 2015 and held that period
of limitation must always to some extent be arbitrary and may result in-14- M.A. No.316 of 2024
some hardship, but this is no reason as to why they should not be strictly
followed.
In para 32, it held that the condonation of delay under Section 5 of
the Limitation Act, 1963 has to be seen in the context of the object of
speedy resolution of the dispute.
In para 58, the Supreme Court held that given the object sought to be
achieved under the Commercial Courts Act, 2015 i.e., the speedy
resolution of the disputes, expression “sufficient cause” in Section 5 of
the Limitation Act, 1963 is not elastic enough to cover long delays beyond
the period provided by the appeal provision itself; and that the expression
“sufficient cause” is not itself a loose panacea for the ill of pressing
negligent and stale claims.
In other words, the Supreme Court indicated that in exercise of
power under Section 5 of the Limitation Act, 1963 a delay beyond the
period of 60 days from the date on which the appeal could have been filed
can be condoned (i.e., below 120 days from the date of pronouncement of
the judgment) by invoking Section 5 of the Limitation Act, 1963, but
where there is negligence, inaction or lack of bona fides, such power
ought not to be exercised.
It went further in para 59 by observing that merely because the
Government is involved, a different yardstick for condonation of delay
cannot be laid down. (This rule would thus apply equally to
instrumentalities of Government like the applicants herein).
It held in para 62 that merely because sufficient cause has been
made out in the facts of a given case, there is no right in the applicants or
the appellants to have the delay condoned.
It concluded in para 63 as under:
“63. Given the aforesaid and the object of speedy disposal sought
to be achieved both under the Arbitration An and the Commercial Courts
Act, for appeals pled under section 37 of the Arbitration Act that are
governed by Articles 116 and 117 of the Limitation Act or Section 13(l-A)
of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days.
respectively, is to be condoned by way of exception and not by way of
rule. In a fit case in which a party has otherwise acted bona fide and not
in a negligent manner, a short delay beyond such period can, in the
discretion of the court, he condoned, always bearing in mind that the
other side of the picture is that the opposite party may have acquired
both in equity and justice, what may now be lost by the first party’s
inaction, negligence or laches.”
(emphasis supplied)
30. Thus, the Supreme Court in Government of Maharashtra (2
supra) permitted condonation of delay beyond 60 days in a case falling
under the Commercial Courts Act only by way of exception and not by way
of rule. If the applicants for condonation of delay had not acted bona fide
and had acted in a negligent manner as in the instant case, the delay is
not liable to be condoned.
31. In the instant case, the delay in filing the appeal is 301 days –
way beyond 60 days + 60 days = 120 days permitted by the judgment of
the Supreme Court to be condoned in exercise of power under Section 5 of
the Limitation Act, 1963. Therefore, such inordinate delay caused by
negligence of the applicants is not liable to be condoned.
32. We may also point out that the applicants were represented
before the Commercial Court, Ranchi by counsel and the judgment was
obviously pronounced in the presence of the counsel.
Though the order was pronounced on 09.10.2023 it appears that the
-15- M.A. No.316 of 2024
application for issuance of certified copy was made on 30.08.2024, it was
made ready on 07.09.2024, and the appeal was filed on 04.10.2024.
If the Commercial Court had not communicated the copy of its judgment
to the applicants within the reasonable time, it was incumbent on the
part of the counsel for the applicants or the employees in the Legal
Department of the applicants to apply for issuance of certified copy from
the Commercial Court, but they have failed in their duty to apply for it
when they did not receive it within a reasonable time.
Their negligence resulted in the inordinate delay of 301 days in filing this
appeal.
33. The applicants cannot blame the respondent for not
communicating to them about the disposal of the appeal and for not
making any demand of payment in terms of the decree of the Commercial
Court.
34. They also cannot take advantage of the negligence of the
counsel engaged by them in not informing the applicants about the
judgment of the Commercial Court. This is because the applicants have a
Legal Department and employees engaged by the applicants in that
department have a duty to monitor what is happening in the cases to
which the applicants are parties, keep track of the progress of the said
cases and the decisions therein, and ensure that applications for issuance
of certified copy are made to the concerned court so that the appeals, if
required, can be preferred within the period of limitation prescribed by
law.”
10. Relying on the above judgment he submits that if the appellant is not
vigilant merely on the premise as presented by the learned counsel for the
appellant the delay cannot be condoned. On this ground, he submits that the
I.A may kindly be dismissed and the delay may not be condoned.
11. In view of the above submission of the learned counsel appearing on
behalf of the parties, the Court has gone through the materials on record in the
main appeal as well as the I.A meant for condonation of delay. From the
records, it transpires that the impugned order was passed on 03.01.2023 which
was communicated to the appellant on e.mail on 05.01.2023 and it has been
pointed out that the appellant herein was under impression that the matter will
be listed for hearing and he was waiting for another date, however, the
impugned order has been received. In this background, on 09.01.2023 the
review petition has been filed before the competent authority. However, nothing
has been communicated to the appellant herein. In the meantime, open house
session was conducted by the respondent no.2. The appellant herein has put
his grievance and he was advised to communicate in writing to the respondent
-16- M.A. No.316 of 2024
no.2. The appellant herein, however, finally applied for certified copy and when
no communication was made and on 03.07.2023 and the letter as referred by
Mr. Jain, the learned counsel for the appellant, clearly states that two bank
drafts were already sent to the authority concerned in the form of Rs.500/- and
Rs.3000/- respectively and in spite of that further communication was made by
the office of the respondent no.2 (Central Public Information Officer) that
Rs.3000/- is insufficient and he was further advised to file another draft of
Rs.500/- which was complied by the letter dated 28.12.2023 along with fresh
bank draft and thereafter the certified copy was supplied to the appellant on
24.05.2024 and pursuant to that on 20.08.2024 the appeal has been preferred
before this Court.
12. In the above background, it is crystal clear that the appellant
herein from the date of communication of the impugned order has taken all
efforts before the authority concerned either by way of filing the review petition
and for obtaining the certified copy. Even the bank draft along with the referred
letters of Rs.500/- and Rs.3000/- respectively has been sent to the office of the
respondent no.2. However, finally, communication was made to provide another
Rs.500/- draft for obtaining the certified copy which was complied by the
appellant on 20.12.2023 and thereafter the certified copy was made available
on 24.05.2024. From the above, it is crystal clear that all efforts have been
taken by the appellant herein to obtain the certified copy and inspite of that,
the certified copy was supplied belatedly. In paragraph no.12 of the writ
petition statement is made that for obtaining the certified copy the appellant
herein has moved before the Hon’ble Delhi High Court for direction upon the
authority concerned for issuing the certified copy and it has been pointed by
the learned counsel for the appellant that however that writ petition has
become infructuous and, in the meantime, the certified copy is supplied to the
appellant herein. Thus, it cannot be said that the appellant herein was not
-17- M.A. No.316 of 2024
vigilant and he was not taking any effort for obtaining the certified copy to avail
his remedy under section 72 of the Copy Right Act. For ready reference, Sub
section 4 of Section 72 of the said Act, which is the section for appeal, is
depicted herein:
“72. Appeals against orders of Registrar of Copyrights-
(4) In calculating the period of three months provided for an
appeal under this section, the time taken in granting a certified
copy of the order or record of the decision appealed against shall
be excluded.”
13. Looking to the above, it is crystal clear that the time in granting the
certified copy be excluded. Identical is the provision in Section 12 of the
Limitation Act, 1963. Section 75 of the Bhartiya Sakchya Adhiniyam, 2023
suggest how a certified copy of the document is required to be issued. In the
impugned order it has been disclosed that it is the certified copy and in view of
that, this Court is not going into the procedural aspect of the certified copy.
Since the competent authority has issued the certified copy, that is deemed to
be the certified copy even if it is not in line of section 75 of Bhartiya Sakchya
Adhiniyam, 2023.
14. The proof by sufficient cause is a condition precedent for exercise of the
extraordinary discretion vested in the court. What counts is not the length of
the delay, but the sufficiency of the cause and shortness of the delay is one of
the circumstances to be taken into account in using the discretion. What
constitutes sufficient cause cannot be laid down by hard and fast rules. This
aspect of the matter has been considered by the Hon’ble Supreme Court in two
of the judgments relied by the learned counsel for the appellants herein(supra).
15. The length of delay is no matter, acceptability of the explanation is
the only criterion. Sometimes delay of the shortest range may be uncondonable
due to want of acceptable explanation whereas in certain other cases delay of
very long range can be condoned as the explanation thereof is satisfactory.
There is no doubt that the limitation is said to be on public policy, however,
-18- M.A. No.316 of 2024
rules of limitation are not meant to destroy the right of parties. The only
purpose of limitation is to seen that the parties do not resort to dilatory tactics,
but seek their remedy promptly. A court knows that refusal to condone the
delay would result in foreclosing a suitor from putting forth his cause.
Presumption cannot be drawn in every case that delay in approaching the court
was deliberate. Further, the primary function of a court is to adjudicate the
dispute between the parties and to advance substantial justice.
16. What has been discussed hereinabove, and the manner the certified copy
has been supplied to the appellant, the liability of the delay cannot be fastened
upon the appellant herein. It is further well settled that if a wrong forum has
been chosen, the delay can be condoned. A reference may be made to the case
of State of Manipur and Others v. All Manipur Regular Post Vacancies
S.T.A and Others reported in (1997) 10 SCC 385.
17. In view of above, the argument of Mr. Pasari, the learned counsel
appearing for the respondent no.6 of filing of the review petition is not being
accepted by this Court in view of the fact that the appellant was under
impression that the case is posted for further hearing, however, in the
meantime, the impugned order has been communicated to the appellant and
pursuant to that, the review petition was filed. However, on the review petition
also, no communication was made to the appellant herein.
18. The judgment relied by Mr. Pasari, the learned counsel appearing on
behalf of the respondent no.6, in the case of Rajnish Kumar and Another v.
Ved Prakash (supra), the entire allegation was made on the lawyer who was
conducting the case before the concerned court and in this background, the
Hon’ble Supreme Court has held that litigant is required to be vigilant and what
has been discussed hereinabove, the fact of the present case is otherwise and
it is further well settled that the ratio of the judgments are being applied in the
facts and circumstances of each case. So far as the judgment in the case of
-19- M.A. No.316 of 2024
Jharkhand Urja Utpadan Nigam Ltd. and Another v. Bharat Heavy
Electricals Limited(supra) is concerned in that case, that case is arising out
of Commercial Courts Act, wherein there is no provision of condonation of delay
and the parties are required to strictly follow the statute.
19. In the case in hand, in light of Sub Section 4 of Section 72 and further
read with Section 12 of the Limitation Act, the period of obtaining the certified
copy can be excluded on sufficient cause and in view of that, the judgment
relied by Mr. Pasari, the learned counsel appearing on behalf of the respondent
no.6 is otherwise and not helping the respondent no.6.
20. In light of the above discussion, reasons and analysis, the Court finds
that sufficient cause has been made out to condone the delay of 506 days in
filing of the present appeal and as such, the delay is, hereby, condoned.
21. I.A. No.9203 of 2024 is allowed and disposed of.
22. At this state, Mr. Pasari, the learned counsel appearing on behalf of the
respondent no.6 submits that so far the main appeal is concerned, the counter
affidavit is not filed, however, the counter affidavit is filed only with regard to
the said I.A and he seeks three weeks’ time to file the counter affidavit in the
main appeal.
23. Time, as prayed for, is allowed.
24. Mr. Jain, the learned counsel appearing on behalf of the appellant
submits that if the counter affidavit is being filed within three weeks, he may
kindly be allowed one week’s further time thereafter to examine the said
counter affidavit.
25. Let this matter appear on 30.07.2025 under the heading for admission
along with the stay petition.
26. With consent of the parties, the above date of posting has been fixed.
( Sanjay Kumar Dwivedi, J.)
SI/,
A.F.R.,
-20- M.A. No.316 of 2024