YASHODA SUPER SPECIALTY HOSPITALS & ANR. vs YASHODA HOSPITAL AND RESEARCH CENTER LIMITED & ANR.

IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 05.02.2024
+ LPA 837/2023 and CM Nos.66836/2023, 66837/2023 & 66838/2023
YASHODA SUPER SPECIALTY HOSPITALS
& ANR. ….. Appellants
versus
YASHODA HOSPITAL AND RESEARCH
CENTER LIMITED & ANR. ….. Respondent
Advocates who appeared in this case:

For the Appellants : Mr Sandeep Sethi, Senior Advocate with
Mr Sai Krishna Raja Gopal, Ms Julien
George, Ms Anu Paarcha, Mr Arjun
Gadhoke, Ms N. Parvati, Ms Riya Kumar
and Mr Sumer Dev Seth, Advocates.
For the Respondents : Mr Abhimanyu Bhandari, Ms Charu
Mehta, Mr Rishi Raj Sharma and Mr Kunal
Khanna, Advocates.

CORAM
HON’BLE MR JUSTICE VIBHU BAKHRU
HON’BLE MS JUSTICE TARA VITASTA GANJU

JUDGMENT

VIBHU BAKHRU, J
1. The appellants have filed the present intra-court appeal impugning an order dated 29.11.2023 (hereafter ‘the impugned order’) passed by the learned Single Judge, whereby the application filed by respondent no.1 under Rule 23 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereafter ‘the IPAB Rules’) seeking review of the order dated 21.01.2020 (hereafter ‘the rectification order’) passed by the Intellectual Property Appellate Board (hereafter ‘the IPAB’), was allowed.
2. In terms of the rectification order dated 21.01.2020, the IPAB had allowed the rectification petition (Rectification Petition No. ORA/13/2017/TM/DEL – hereafter referred to as ‘the rectification petition’) filed by the appellants. The appellants had filed the rectification petition seeking removal of respondent no.1’s registered trademark (registered by Registration No. 1340261 in Class 42 dated 22.02.2005) from the Register of Trade Marks.
3. Respondent no.1 was proceeded ex parte and the IPAB allowed the rectification petition without contest. The learned Single Judge accepted respondent no.1’s contention that the rectification order dated 21.01.2020, allowing the rectification petition, was passed without affording respondent no.1 due opportunity to contest the same and in violation of the principles of natural justice. Accordingly, by the impugned order, the learned Single Judge set aside the rectification order passed by the IPAB and directed that the rectification petition filed by the appellants be heard afresh.
4. The appellants assail the finding of the learned Single Judge that the IPAB had passed the rectification order dated 21.01.2020 in violation of the principles of natural justice. It is also contended by the appellants that respondent no.1 has overlooked the fact that respondent no.1 had founded its appeal (review petition) on a false premise that respondent no.1 had no knowledge of the orders passed by the IPAB or the prosecution of the rectification petition.
5. Mr. Sethi, learned senior counsel appearing for the appellants contended that the learned Single Judge had proceeded on the erroneous premise that the notice of the rectification petition was not served on respondent no.1. He submitted that the records obtained from the IPAB clearly established that respondent no.1 had refused service of the notice. The IPAB had, accordingly, passed an order dated 08.04.2019 noting that respondent no.1 had refused to accept service as per the report of the postal department and had listed the rectification petition for final arguments. He submitted that the said order was not assailed and therefore, the decision of the IPAB could not be faulted on the ground that it had proceeded against respondent no.1 ex parte. He contended that the learned Single Judge had proceeded on an erroneous basis that the notice issued to respondent no.1 was returned with the noting “insufficient address”. Whereas, in fact, the service of notice had been refused by respondent no.1.
6. Mr. Sethi also contended that respondent no.1 had sought a review of the rectification order dated 21.01.2020 on the ground that it had “no knowledge of the concerned Order an any prosecution of the subject rectification petition at all”. Respondent no.1 had claimed that it had acquired knowledge that the IPAB had passed the rectification order dated 21.01.2020 through a person known to its directors. Mr. Sethi submitted that the appellants had filed a suit (C.O.S. No. 02/2017) against respondent no.1 before the City Civil Court, Hyderabad, and the fact that appellant no.1 had filed the rectification petition was fully disclosed in the pleadings. The rectification petition was also filed along with the plaint, which was duly served. He submitted that in response to the averments made in the plaint, respondent no.1 had contended that the suit was liable to be stayed in view of the rectification petition pending before the IPAB. He submitted that this conduct of respondent no.1 clearly disentitled it to seek review of the rectification order dated 21.01.2020, on the ground that respondent no.1 was not heard or afforded an opportunity to contest the same.
7. Mr Bhandari, learned counsel appearing for respondent no.1 countered the aforesaid submissions. He submitted that the records obtained by respondent no.1 from the IPAB did not contain the postal envelope recording any noting to the effect that respondent no.1 had refused to accept the same. He submitted that the scanned record of the IPAB, as made available to respondent no.1, indicated that the initial notice had been returned on account of insufficiency of address. He also countered the contention that respondent no.1 had made any false averment in the pleadings. He submitted that the same must be read in the proper perspective and the same clearly disclosed that respondent no.1 had not received notice of the rectification petition from the IPAB.
Reasons and Conclusion
8. The limited controversy to be addressed is whether the learned Single Judge has erred in setting aside the rectification order dated 21.01.2020 on the ground of violation of principles of natural justice.
9. On 19.01.2018, the IPAB had passed an order directing issuance of notice of the rectification petition to respondent no.1. Thereafter, on 22.03.2018, the learned IPAB had issued Form-C for service of the rectification petition and annexures to respondent no.1. There is some controversy as to whether Form-C was served on respondent no.1. According to the appellants, the service was effected at the address of respondent no.1’s promoter on 12.04.2018. The recipient had declined to receive the notice and the postal envelope was returned with the noting “Praptkarta ne lene se mana kar diya” (the addressee has refused the postal envelope). Thus, according to the appellants, respondent no.1 had refused to accept the notice and therefore, the service was completed. However, according to respondent no.1, a scanned copy of the IPAB’s record, as furnished to respondent no.1 does not indicate that the service was refused by respondent no.1. It is contended on behalf of respondent no.1 that the record indicates that postal authorities had confirmed that envelopes could not be delivered for insufficiency of address.
10. On 30.05.2018, the learned IPAB had directed the appellants to furnish the correct present postal address of respondent no.1 and address for service in India. The appellants state that their advocates had received the letter dated 30.05.2018 issued by the Registry of the IPAB informing them that Form-C dated 22.03.2018 had been returned unserved with the remarks “refused by person”. The IPAB’s Registry had further directed the appellants to furnish the correct postal address of respondent no.1 in order that Form-C may be forwarded to respondent no.1.
11. In response to the said letter, the appellants sent a letter dated 28.06.2018, inter alia, stating that Form-C should be deemed to be served. However, the appellants had also forwarded the address for fresh service and further requested the learned Registrar of the IPAB to serve Form-C at the address as provided.
12. It is material to note that the appellants forwarded two addresses of respondent no.1. The first was respondent no.1’s registered address from the website of the Ministry of Corporate Affairs and the second was the address of respondent no.1’s attorney on record (Deepak Gupta). Concededly, there was an error in address of respondent no.1’s attorney as provided by the appellants. It was reflected as Flat No. D-3, Second Floor, 2A/20, Nehru Nagar, Ghaziabad-201001. However, the correct address was not ‘Flat No.D-3, Second Floor’ but ‘Flat No.S-3, Second Floor’.
13. On 10.12.2018, the IPAB had directed that fresh notice be issued to respondent no.1. The said order reads as under:
“1. The respondent no.1 is not served. Fresh notice be issue to the respondent no.1 for 08/04/2019.”
14. It is not disputed that the said order was not implemented and no notice was issued by the Registry of the IPAB in compliance with the order dated 10.12.2018 of the IPAB.
15. In the aforesaid facts, the learned Single Judge had declined to enter into the controversy whether the notices issued earlier were in fact served. In our view, rightly so. Plainly, it is not necessary to examine the controversy whether, in fact, respondent no.1 had refused service of notice issued on 22.03.2018 in view of the IPAB’s subsequent order.
16. The said notice was stated to have been sent at the address of respondent no.1’s promoter. Although, it is contended on behalf of the appellants that it was not necessary to send the notice at the address of respondent no.1’s attorney that was provided by respondent no.1 to the Trade Marks Registry for further communication, respondent no.1 disputes the same. However, it is not disputed that, in fact, no attempt was made to serve Form-C at respondent no.1’s attorney’s address, which was available with the Trade Marks Registry. This controversy is also not material considering that the appellants had in response to the Registry of the IPAB letter dated 30.05.2018, forwarded the addresses of respondent no.1 and its attorney to the Registry of the IPAB with further requested to serve Form-C at the given addresses. It is relevant to refer to the last sentence of the said letter, which reads as under:
“The Learned Registrar is requested to serve Form ‘C’ at the above addresses in respect of the subject. Registration No.1340261 in Class 42 and proceed further with the matter”.
17. As noted hereinbefore, the address of respondent no.1’s Trade Marks Attorney on record, as provided by respondent no.1, was erroneous. The error in the address is material because it is of a different flat (‘Flat No. D-3’ instead of ‘Flat No. S-3’).
18. Concededly, no fresh service was effected on respondent no.1 at the addresses provided by the appellants under the cover of the letter dated 02.07.2018.
19. Thereafter, on 10.12.2018, the learned IPAB had noted that respondent no.1 was unserved and directed that fresh notice be issued to respondent no.1.
20. It is contended on behalf of the appellants that the said order was erroneous as respondent no.1 was deemed to be served in April, 2018 as the said service was refused. However, we find no merit in the contention that the IPAB’s order dated 10.12.2018 directing fresh issuance of notice, was erroneous. It is also not open for the appellants to contend to the contrary as the appellants had, in fact, requested the Registry of the IPAB to issue fresh notice at the addresses provided by them in terms of the letter dated 02.07.2018. It is also important to note that the order dated 10.12.2018 was passed by the IPAB in presence of the counsel of respondent no. 1 and no objection for issuing notice was raised by the appellants at the material time. The appellants had also not contested the said order at any stage.
21. In view of the above, the order dated 10.12.2018 recording that respondent no.1 was not served notice and directing issuance of fresh notice had attained finality. There is no material on record to even remotely suggest that an attempt to serve respondent no.1 was made after 10.12.2018 in compliance with the said order. Concededly, the order dated 10.12.2018 directing fresh notice was not complied with.
22. It is in the aforesaid context that the learned Single Judge had rightly held that it was not necessary to examine the controversy whether the earlier notices had been served.
23. On 08.04.2019, the IPAB had noted that respondent no.1 had refused to accept service and directed that the matter be listed for final arguments. The said order is erroneous as concededly no attempt to serve respondent no.1 in compliance with the earlier order dated 10.12.2018 was made and the said order was not recalled.
24. There is also no material on record to indicate that the order dated 08.04.2019 directing that the rectification petition be listed for final arguments was attempted to be served on respondent no.1. Rule 16 of the IPAB Rules requires the IPAB to notify the parties of the date and place of hearing of the application or appeal, in such manner as the Chairman may by general or special order direct. Thus, it was also incumbent on the IPAB to inform respondent no.1 of the date fixed for hearing arguments in respect of the rectification petition. However, no such notice was served. Thus, respondent no.1 had no opportunity to contest the arguments advanced by the appellants in support of their rectification petition.
25. In view of the above, we find no fault with the decision of the learned Single Judge in holding that the rectification order dated 21.01.2020 was passed in violation of the principles of natural justice.
26. The contention that the learned Single Judge had erred in entertaining the appeal (review petition) as respondent no.1 had not approached the Court with clean hands, is also unpersuasive. Although the learned Single Judge had found merit in the contention that respondent no.1 had been less than accurate in its pleadings, the learned Single Judge was of the view that respondent no.1’s hands were not “so unclean, as to disentitle him to relief in a case such as this”.
27. The appellants’ contention that respondent no.1 had approached the court with unclean hands is, mainly, premised on two assertions. First, that respondent no.1 had made a false averment that it had no knowledge of the rectification order dated 21.01.2020 or the rectification petition prior to 14.07.2020. And second, that respondent no.1 was aware of the rectification petition as the same was disclosed in the suit before the City Civil Court, Hyderabad but the appellants had taken no steps to contest the same.
28. There is no material on record that would indicate that respondent no.1 was communicated the rectification order dated 21.01.2020. Thus, the averment made in the appeal (review petition), filed before the learned Single Judge asserting that it had no knowledge of the rectification order dated 21.01.2020, cannot be held to be patently false. Further, the averment by respondent no.1 in the appeal (review petition) that it was not aware of “prosecution of the subject rectification petition” may be considered misleading but cannot be held to be false on the basis of the pleadings in suit (C.O.S No. 02/2017) in the City Civil Court, Hyderabad.
29. The appellants had disclosed the fact that they had filed a rectification petition and had also enclosed a copy of the same, along with plaint in the suit (C.O.S No. 02/2017) filed before the City Civil Court, Hyderabad. In response to the said contentions, respondent no.1 had alleged that the rectification petition was brought to its knowledge for the first time in the said proceedings (that is, proceedings before the City Civil Court, Hyderabad). However, it is material to note that respondent no.1 had also asserted that it had not received any notice of the said rectification petition from the Registry of the IPAB.
30. In paragraph 6 of the Written Statement filed by respondent no.1 in the suit (C.O.S No. 02/2017) before the City Civil Court, Hyderabad, it had asserted that “the purported rectification application is yet to be served on Defendant No.1 and is pending adjudication”. We agree that since respondent no.1 was aware that a rectification petition was pending before the IPAB, it should have disclosed in the appeal (review petition) that it had knowledge of the same at the material time. However, since respondent no.1 had not received any notice of the rectification petition from the IPAB, respondent no.1’s averment that it was not aware whether the rectification petition was being prosecuted, cannot be termed as completely false.
31. It is not necessary to dissect the averments made by respondent no.1 any further because in case of any ambiguity, the benefit of doubt must be extended to respondent no.1. The learned Single Judge had also noted that respondent no.1’s registered trademark had been removed from the Register of Trade Marks after fifteen years of its use and therefore, respondent no.1’s appeal (review petition), which in effect sought an opportunity to contest the rectification petition, should not be denied.
32. We find no error with the said view. The appeal is unmerited and is, accordingly, dismissed. The pending applications are also disposed of.

VIBHU BAKHRU, J

TARA VITASTA GANJU, J
FEBRUARY 05, 2024
RK

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