Z.S. Negi, Chairman
1 . The above S.R. Nos. under Section 91 of Trade Marks Act, 1999 are filed by the appellant against the orders dated 17.03.2004, 5.2.2004 and
31.3.2004 passed by the Joint Registrar of Trade Marks treating the rectification application Nos. BOM-10257, BOM-902 and BOM-8743,
respectively, as abandoned. The said S.R. Nos. have not been allotted appeal numbers as the same are filed beyond the prescribed period of limitation
and the applications filed for condonation of delay in filing the aforesaid S.R. Nos. are pending for decision.
2 . The applications for condonation of delay came up for hearing before us on 02.02.2009 wherein Shri H.W. Kane, Advocate and Shri Ankit
Prakash for M/s Anand & Anand, Advocates appeared for the respondent No. 1 and the applicant was not represented. However, Shri H.P. Singh,
Advocate for the applicant have filed three Form 5 seeking adjournment of the three matters on the ground that the parties are negotiating and trying
to settle the matter.
3 . Learned Counsel Shri H.W. Kane submitted that he has not received copies of Form 5 for his concurrence for the adjournment. The learned
Counsel submitted that the aforesaid applications had in the past been posted for hearing on 17.09.2007 and 03.04.2008 and now on 02.02.2009 and
the counsel for the appellant/applicant had sought adjournment in the past and now also seeking adjournment on the same grounds. He further
submitted that it is not true that the parties are negotiating and trying to settle the matter.
4. After having heard the counsel for the respondent No. 1, and after going through the records, we have noticed that the appellant/applicant has
obtained adjournments in the past on the same grounds which, as submitted by the learned Counsel for the respondent No. 1, did not exist. It is seen
from the record that the counsel for the appellant sought adjournment by filing Form 5 dated nil of September, 2007, and dated 14.3.2008 and now
requested on Form 5 dated 21.1.2009 on the grounds that the parties are negotiating and trying to settle the matter. The counsel for the respondent
No. 1 has not received copies of the said Form 5 and as such the requirement of Rule 18 of the Intellectual Property Appellate Board (Procedure)
Rules, 2003 has not been complied with. Even the appellant has not thought fit to depute a representative to answer the objections raised by the
counsel for the respondent No. 1. It is erroneous to think that an adjournment will be granted by simply filing Form 5 and no representation is required
to be made by deputing an authorised representative or a proxy counsel. Since there is no representative of the appellant/applicant present to clarify or
rebut the objections, we have to take the submissions made across the bar by the learned Counsel on the other side as true/unrebutted. When that is
the position, the Forms 5 are liable to be rejected.
5 . In view of the above, we reject the all the three Form 5 and dismissed the applications for non-prosecution. Having, dismissed the applications, the
S.R. Nos. 16 to 18 do not survive. There shall be no order as to costs.
