Tianjin Dishili Investment Holding Group Ltd v. Union of India

1. Whether reporters of Local papers may Not necessary be allowed to see the judgment?

2. To be referred to the reporter or not? Not necessary

3. Whether the judgment should be reported Not necessary in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 2nd December, 2010 of the Intellectual Property Appellate Board dismissing the application of the petitioner herein for amendment of the memo of parties and consequently 2011:DHC:3987 also dismissing the appeal preferred by the petitioner.

2. The petitioner was earlier known as Tianjin Kinsly Pharmaceutical Co. Ltd. and it is the case of the petitioner that the name of the petitioner was changed to the present name in the year 2004.

3. The petitioner in the year 2005 in its old name applied for grant of patent. The application was however dismissed by the order dated 6th October, 2009 of the Assistant Controller of Patents & Designs. The petitioner preferred the appeal aforesaid to the Board against the said order and during the pendency of the said appeal, realizing that the proceedings had been undertaken in the old name, moved the application aforesaid for amendment of memo of parties.

4. The Board vide the order impugned in this petition held that since the change in name was effected prior to the making of the application, no case for amendment was made out and assumedly, holding the proceedings to be by a non-existent applicant, also dismissed the appeal.

5. Considering the nature of the controversy, the counsel for the petitioner and the counsel for the respondent appearing on advance notice have been heard finally.

6. The counsel for the respondent has contended that it was not even the case of the petitioner that there was any bona fide mistake and in the circumstances the Board was justified in making the impugned order.

7. It is the established principle as far as the Civil Courts are concerned (see Bal Niketan nursery School Vs. Kesari Prasad AIR 1987 SC 1970 and Jai Jai Ram Manohar Lal Vs. National Builiding Material Supply Gurgaon AIR 1969 SC 1267) that such errors are merely an irregularity and do not affect the institution of a proceeding. I see no reason why a more stringent view be taken in the proceedings under The Patent Act, 1970 specially when no prejudice is shown to have been caused to any one and no reason has been started by the Board for the petitioner to be disentitled to such relief. The counsel for the petitioner also refers to Section 23(3) of The Companies Act, 1956 which though is strictly not applicable, reflect the intention of the legislature.

8. The petition is accordingly allowed. The order dated 2nd December, 2010 of the Appellate Board is set aside and the amendment to the memo of parties claimed by the petitioner as appellant before the Board is allowed and the appeal preferred by the appellant is restored to the position as existed prior to the impugned order. The petitioner to file the amended memo of parties before the Board within one month and the Board to fix a date for hearing of the appeal. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 08, 2011 bs