Apex court confirmed the death penalty =Five members of a family including two minor children and the driver were ruthlessly killed by the use of a knife, an axe and an iron rod and with the help of four others. The crime was obviously committed after pre- meditation with absolutely no consideration for human lives

Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOs. 1333-1334 OF 2010 Sonu Sardar ...... Appellant Versus State of Chhattisgarh ...... Respondent J U D G M E N T A. K. PATNAIK, J. These are appeals against the judgment of the High Court of Chhattisgarh in Criminal Reference No.1 of 2008 and Criminal Appeal No. 240 of 2008 confirming the conviction of the appellant and the death penalty imposed on him under Section 396 of the Indian Penal Code (for short `IPC'). 2. The prosecution case very briefly is that on 26.11.2004, Shamim Akhtar (for short `Shamim'), a scrap dealer and a resident of village Cher, Distt. Baikunthpur, Chhattisgarh, had gone to Raipur for selling scrap. He sold the scrap and received cash of Rs.1,70,000/- and returned to his house 2 with the cash. His wife, Ruksana Bibi, kept the cash in different places of her house, which was to be deposited in the bank the next day. At about 6.00 p.m. on 26.11.2004, Sonu Sardar, the appellant herein, and Ajay Singh @ Fotu along with three other persons came with scrap to the shop of Shamim and left after selling scrap for Rs.480/-. The appellant and Ajay Singh and three other persons, however, returned at about 7.00 p.m. on the same day and knocked on the door of the house of Shamim. When the door was opened, the appellant and Ajay Singh and three other persons demanded money from Shamim. One of these five persons then bolted the door from inside and two other persons caught hold of Asgar Ali, driver of Shamim, and one of them caught hold of Shamim. They kept a knife on the neck of Shamim and compelled him to give cash which he was having in his pocket. Shabana Khatun (for short `Shabana'), the daughter of Shamim, who was present inside, tried to fight but an attempt was made by the appellant and his people to assault her and she somehow escaped through the back door and went to the house of Ramlal, a kilometer away from the house of Shamim. Shabana told Ramlal 3 about the incident at her house and when Ramlal wanted to go to their house, Shabana asked him not to go because she was afraid that Sonu Sardar and others may kill him. That night Shabana stayed at the house of Ramlal and next morning at about 4-5 a.m., Shabana, Ramlal and his wife Dhanpatbai came to the house of Shamim and found that Yakut and Asna, 3 years old son and 5 years old daughter of Shamim, were crying near the dead bodies of Shamim, Ruksana Bibi, Yakub and Kumari Rana, 7 years old son and 9 years old daughter of Shamim. Shabana then went to Baikunthpur and narrated the incident to her uncle Nasim Akhtar, who reported the matter the Police. The Police reached the spot and the FIR was lodged. The dead bodies were sent for autopsy to the Community Health Centre, Baikunthpur, and a team led by Dr. Ashok Kumar carried out the post mortem. In course of investigation, the Investigating Officer recorded statements of several persons under Section 161, Cr.P.C. The appellant and his co- accused, Ajay and Chhoti Bai, were arrested but the other persons absconded after commission of crime. Blood-stained T-shirt and turban of the appellant and an axe with broken 4 handle, a rod and a knife were seized. Test Identification Parade was carried out on 01.12.2004 in which Shabana identified the appellant as well as Ajay as two of the five persons who had come to the house of Shamim on 26.11.2004 and were demanding money. The seized articles were sent to the Forensic Science Laboratory, Raipur. After completion of investigation, a chargesheet was filed and Sessions Trial No.06/2006 was conducted by the Sessions Judge, Koriya, Baikunthpur (Chhattisgarh). 3. In course of the trial, the prosecution examined 38 witnesses. Shabana was examined as PW-1, Ramlal was examined as PW-2, Nasim Akhtar was examined as PW-3 and Dhanpatbai was examined as PW-4. Dr. Ashok Kumar was examined as PW-36 and the Investigating Officer was examined as PW-37. A large number of documents and the seized articles were also exhibited. The trial court recorded the statements of the appellant under Section 313, Cr. P.C. After hearing the arguments, the trial court held that it was clear from the evidence of PW-1, PW-2, PW-3 and PW-4 that the appellant had committed the dacoity at the house of Shamim between 7.00 p.m. of 26.11.2004 and 4.00 a.m. of 5 27.11.2004 and thereafter committed murder of Shamim, Asgar, Ruksana Bibi, Yakub and Kumari Rana with rod, knife and axe and that the prosecution had succeeded in establishing the guilt of the appellant under Section 396, IPC, beyond reasonable doubt. After hearing counsel for the parties on the question of sentence, the trial court also held that the case falls in the category of rarest of rare cases and imposed the sentence of death on the appellant. By the impugned judgment, the High Court has confirmed the conviction of the appellant under Section 396, IPC, and also the sentence of death. 4. Learned counsel for the appellant submitted that the appellant had been convicted on the sole testimony of Shabana (PW-1), a ten years old child who could not have identified the appellant as one of the five persons who committed the dacoity and murder on the night of 26.11.2004. She submitted that it is on the information received from PW-1 that PW-3 had lodged the FIR, but in the FIR the appellant has not been named. She argued that had PW-1 known the appellant, she would have told PW-3 the name of the appellant and PW-3 would have mentioned the 6 name of the appellant in the FIR. She submitted that it will therefore not be safe for this Court to sustain the conviction of the appellant. 5. Learned counsel for the State, on the other hand, submitted that although PW-1 is a minor, her evidence was reliable and she had stood the test of cross-examination. He further submitted that PW-1 narrated the incident not only to PW-3, but also to PW-2 and PW-4 and the evidence of PW- 2 and PW-4 would show that PW-1 had clearly mentioned that out of the five persons, who had committed the dacoity and murder on the night of 26.11.2004, there was a sardar. He further submitted that PW-1 has also stated in her evidence that the appellant had gone to her father's shop 5 to 6 times before the 26.11.2004 to sell scrap and hence she could identify him as one of the five persons who had committed the dacoity and murder on the night of 26.11.2004. Moreover, at the time of the Test Identification Parade conducted by the Magistrate (PW-11), PW-1 identified the appellant as one of the five persons, who had come to the house of Shamim on 26.11.2004 and were demanding money. He submitted that the evidence of PW-1 that the 7 appellant participated in the dacoity and murder on 26.11.2004 is corroborated by the recovery of the iron rod and axe on the statement of the appellant and by the fact that the seized T-shirt and turban of the appellant were blood-stained. 6. We have considered the submissions of learned counsel for the parties and we find that during investigation a Test Identification Parade was carried out on 01.12.2004 and out of the ten persons who were presented, the appellant and Ajay Singh @ Fotu were identified by PW-1 as the two persons, who were amongst the five persons who had come to the house of Shamim and were demanding money from him. From the evidence of PW-2 as well as the evidence of PW-4, we find that PW-1, soon after she escaped from the house of Shamim, has mentioned that one of the five persons who had gone to the house of Shamim was a sardar. In her cross- examination, PW-1 has stated that she knew the appellant as he had come to their house for selling scrap. Moreover, the broken axe with broken handle and iron rod (Ext. P.24) were recovered pursuant to the statement of the appellant (Ext. P.16). PW-36, Dr. Ashok Kumar, after narrating the injuries 8 on the dead bodies of Shamim, Asgar Ali, Ruksana Bibi, Yakub and Kumari Rana, has opined that the death has been on account of shock as a result of fatal injuries. The injuries described by them are not only incised wounds but multiple fractures of temporal and parietal bones and on the head which could have been caused by the axe and the iron rod. The report of the Forensic Science Laboratory (Ext.P.61) confirms presence of human blood on the clothes of the deceased persons, axe and iron rod (Ext. P.24) as well as the turban and T-shirt of the appellant (Ext. P.37) which had been seized. Thus, the conviction of the appellant is not only based on the oral testimony of PW-1, but also the evidence of PW-2, PW-3, PW-4, PW-36, the seized articles and also the report of the Forensic Science Laboratory. It is further established from the evidence of PW-1 and the Panchanama of the house of Shamim made on 28.11.2004 that only cash of Rs.65,760/- was available and the remaining cash out of Rs.1,70,000/- was missing. The prosecution has, in our considered opinion, proved beyond reasonable doubt that the appellant participated in the offence of dacoity and murder 9 and has been rightly convicted for the offence under Section 396, IPC. 7. On the question of sentence, learned counsel for the appellant submitted that this Court has held in Ramesh and others v. State of Rajasthan [(2011) 3 SCC 685] that before awarding death sentence, the trial court was expected to give elaborate reasons. She submitted that the reasons given by the trial court for awarding death sentence on the appellant were not elaborate. She submitted that in Ramesh and others v. State of Rajasthan (supra) this Court did not find clear evidence as to which of the three persons who participated in the crime was the actual author of the injuries on Ramlal and Shanti Devi and held that as it is difficult to say that Ramesh alone was the author of the injuries on Ramlal as well as Shanti Devi, death sentence awarded to Ramesh should be modified to life imprisonment. She submitted that in the present case also five persons have committed the offence under Section 396, IPC, and as the actual role of the appellant in the offence is not known the death sentence should be modified to life imprisonment. 10 8. Learned counsel for the State, on the other hand, submitted that the appellant has participated in the offence under Section 396, IPC, and as many as five innocent persons, including two children, have lost their lives and the trial court has given sufficient reasons for awarding death sentence to the appellant. He cited the decision of this Court in Sushil Murmu v. State of Jharkhand [(2004) 2 SCC 338] for the proposition that the punishment should be proportionate to the crime committed by the accused. He submitted that in the facts of the present case, since the crime was heinous in nature and resulted in the death of five persons, death sentence would be proportionate to the crime committed by the appellant. He also relied on Atbir v. Government of NCT of Delhi [(2010) 9 SCC 1] in which this Court held that preventing persons in the house to escape and committing brutal murder of as many as three persons inside the house are aggravating circumstances warranting imposition of death sentence on the accused. He submitted that in the present case also, as the appellant had closed and bolted the door to prevent an escape of any person from the house, and 11 had then brutally murdered as many as five persons, death sentence should be imposed on the appellant. 9. We have considered the submissions of the learned counsel for the parties and we find that the trial court has recorded the following special reasons under Section 354 (3) of the Criminal Procedure Code, 1898 for awarding the death sentence on the appellant: (i) The crime was pre-meditated. (ii) The crime has struck fear and terror in the public mind. (iii) Helpless and defenceless women and two minor children aged eight and four years besides two adult men were murdered. (iv) Asgar Ali, the driver of Shamim, who had only stopped in the house for his food, was also not spared. (v) Taking advantage of earlier business relations with Shamim, the appellant made a friendly entry and committed the murders. (vi) The intention was to kill all members of the family though surprisingly a six month old baby and a four year old child remained alive. (vii) The five murders were brutal, grotesque, diabolical, revolting and dastardly, which indicated the criminality of the perpetrators of the crime. (viii) No physical or financial harm appears to have been caused by the deceased to the accused. 12 As against these aggravating circumstances, the trial court did not find any mitigating circumstance in favour of the appellant to avoid the death penalty. This is, therefore, not one of those cases in which the trial court has not recorded elaborate reasons for awarding death sentence to the appellant as contended by learned counsel for the appellant. 10. Regarding the role of the appellant in the commission of the offence of dacoity and murder, we have already found that the turban and T-shirt of the appellant, which were seized and sent for examination to the Forensic Science Laboratory, had presence of human blood. We have also found that the axe and the iron rod, which were recovered pursuant to the statement of the appellant, had also blood- stains. We have also found from the evidence of PW-1 that when her mother was cooking food and came out on hearing the commotion, the appellant was demanding money from her father and her father gave to the appellant all the money which he was having in his pocket. There is, therefore, clear and definite evidence in this case to show that the appellant not only participated in the crime, but also played the lead role in the offence under Section 396, IPC. This is, therefore, 13 not a case where it can be held that the role of the appellant was not such as to warrant death sentence under Section 396, IPC. 11. In a recent judgment in Sunder Singh v. State of Uttaranchal [(2010) 10 SCC 611], this Court found that the accused had poured petrol in the room and set it to fire and closed the door of the room when all the members of the family were having their food inside the room and, as a result, five members of the family lost their lives and the sixth member of the family, a helpless lady, survived. This Court held that the accused had committed the crime with pre-meditation and in a cold blooded manner without any immediate provocation from the deceased and all this was done on account of enmity going on in respect of the family lands and this was one of those rarest of rare cases in which death sentence should be imposed. The facts in the present case are no different. Five members of a family including two minor children and the driver were ruthlessly killed by the use of a knife, an axe and an iron rod and with the help of four others. The crime was obviously committed after pre- meditation with absolutely no consideration for human lives 14 and for money. Even though the appellant was young, his criminal propensities are beyond reform and he is a menace to the society. The trial court and the High Court were therefore right in coming to the conclusion that this is one of those rarest of rare cases in which death sentence is the appropriate punishment. 12. In the result, we find no merit in these appeals and we sustain the conviction of the appellant as well as the sentence of death under Section 396, IPC, and dismiss the appeals. .............................J. (A. K. Patnaik) .............................J. (Swatanter Kumar) New Delhi, February 23, 2012.

INTELLECTUAL PROPERTY APPELLATE BOARD, =The respondent has obtained registration of the impugned trade mark KYK which is an identical and deceptively similar trade mark to that of the applicant’s well known and reputed trade mark KYK. The respondents have filed a suit against the applicant for injunction restraining the applicants from infringing the respondent’s registered trade mark. The registration of the impugned trade mark are being obtained by playing fraud upon the Registrar of Trade Marks. The respondents claim use since 10.10.1996 in respect of parts and fittings in Class 12 and as regards goods in respect of bearings, filters, gear and gear parts falling in Class 7 since 10.4.2000. It is however submitted that the applicants trade mark was bonafidely adopted by the applicant as back as in year 1952. The adoption of the impugned trade mark by the respondents is absolutely dishonest, malafide and in bad faith and is in contravention of the provisions of the Act. Any use by the respondent therefore is void ab initio and no use in the eyes of law.= The two original rectification applications have been filed by the applicants being aggrieved by the Civil Suit filed by the respondents before the Hon’ble High Court of Delhi. The applicants have the locus to file and maintain the application for rectification. The marks are identical and are used in respect of identical goods. By the impugned registration, the applicant is likely to be injured or damaged in some way or the other. 26. The other issue is regarding the proprietorship of the trade mark “KYK”. The respondents have not placed before us any record or documents to say that V.K. Automobiles is also the proprietor of the trade mark. The Civil Suit has been filed by V.K. Automobiles and M/s. KYK International. The first application under No.949032 filed on 21.8.2000 has been filed by KYK Bearing International. On 25.8.2000, KYK Bearing International has assigned the trade mark in favour of V.K. Automobiles. If that is the case then how is it the application under No.1291522 on 21.6.2004 has been filed by KYK International. There is nothing on record to say if there had been any partial assignment. That apart the respondents claims user since 1996 as regards Class 12 application and 2000 as regards Class 7 application. When the mark was assigned to V.K. Automobiles in the year 2000 then the 1st bill dated 1999 in the name of V.K. Automobiles cannot be taken note of for deciding this case as it is not clear as to the proprietor. The respondent thus cannot be the proprietor of the trade mark and the registration is therefore in contravention of Section 18 of the Act. 27. The other issue is regarding the user claimed by the respondents in their application for registration. The respondents claim user since 1996 and 2000 in their application. There is no evidence prior to 2005. It is also the case of the respondent that the manufacturing of bearings were carried out through one M/s. Techno Mark Grindwell Industries. The 1st invoice is dated 2005 by M/s. Techno Mark Grindwell Industries. The respondents have not proved their user as claimed. 28. The respondents have claimed user since 10.10.1996 for Class 12 goods and 10.4.2000 for Class 7 goods. The respondent’s contention is that they had been dealing through one M/s. Techno Mark Grindwell Industries. It is not clear as to how long they were carrying on business through M/s. Techno Mark Grindwell Industries. As stated earlier 1st invoice is of the year 2005. In the absence of any documents either from 1996 or at least from 2000 the claim of user before the Registrar is wrong statement for which reason the mark cannot be allowed to continue on the Register. 29. As held earlier, the respondents having not given any cogent evidence to prove their user since the date as claimed in their application for registration, we do not think it correct to allow the mark to continue on the register. 30. The judgments relied on by both the parties are not dealt into as it will only multiply authorities. 31. For the reasons stated above, the impugned trade marks registered under Nos.1291522 and 949032 in Class 7 and 12 respectively are cancelled with a direction to the Registrar of Trade Marks. No order as to costs. Miscellaneous Petitions are closed.

INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018 CIRCUIT BENCH SITTING AT DELHI M.P. No.249/2009 in ORA/220/2009/TM/DEL & ORA/220/2009/TM/DEL FRIDAY, THIS THE 10th DAY OF FEBRUARY, 2012 Hon’ble Smt. Justice Prabha Sridevan … Chairman Hon’ble Ms.S. Usha … Vice-Chairman KYK Corporation Ltd. 43-2-509, Otori NAKA-MACHI-2-CHO SAKAI CITY JAPAN. … Applicant (By Advocate: Mr. M.K. Miglani) Vs Vivek Kocher & Vineet Kocher … Trading as KYK Bearing International C-9/140, Yamuna Vihar Delhi-110053. … Respondent (By Advocate: Mr. Satish Kumar) M.P. No.250/2009 in ORA/221/2009/TM/DEL & ORA/221/2009/TM/DEL KYK Corporation Ltd. 43-2-509, Otori NAKA-MACHI-2-CHO SAKAI CITY JAPAN. … Applicant (By Advocate: Mr. M.K. Miglani) Vs Vivek Kocher & Vineet Kocher Trading as KYK International C-9/140, Yamuna Vihar Delhi-110053. … Respondent (By Advocate: Mr. Satish Kumar) ORDER(No.36/2012) Hon’ble Ms.S. Usha, Vice-Chairman: Applications for removal of the trade mark KYK registered under No.1291522 in Class 7 and 949032 in Class 12 under the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the ‘Act’). These two applications were heard together as the issues involved and the parties are one and the same, with the consent of the parties. A common order is passed. 2. The applicant is a company duly organized and existing under the laws of Japan and engaged in the business of manufacturing, marketing, selling and exporting inter alia all types of bearings, including part of land vehicles, bearing (axle) for vehicle wheels, and bearings (carrying for wheels) since the year 1952. The applicants well known trade mark is its house mark which also forms a prominent part of the corporate trade and has acquired a global fame and reputation of being the most trusted name in bearings industry. 3. The applicant was founded by Mr. Kiyosias Yamamoto and was originally incorporated in the year 1952 in Japan under the name Kabusikikaisiya Yamakei Bearing Limited. That Mr. Kiyosias took the first letter from the corporate name of his company Kabusikikaisiya Yamakei and conjoined with the first letter of his name Kiyosias to coin the expression KYK and adopted the same as a trade mark in his high quality goods manufactured and sold by his company. The corporate name underwent a change in the year 1982 and the company was known as Tottori Yamakei Bearing Seisakusho Ltd. when the manufacturing facility of the company was shifted to Tottori province in Japan. The said corporate name further underwent a change in the year 2000, to KYK Corporation Limited which is the present applicant herein. Since its incorporation, the applicant used the said trade mark through itself as well as through its licensees/distributors and franchisees in relation to the aforesaid goods not only in Japan but across the globe. The goods bearing the trade mark KYK were exported and marketed in the United States as early as 1953. The high quality goods of the applicant received market recognition and the applicant began to expand its marketing operations to other parts of the world. Since its inception, KYK has remained the most well-known and renowned trade mark. The applicants have also obtained valuable intellectual property rights in the said mark KYK by securing registrations in various countries. The said registrations are valid and subsisting. In order to secure statutory rights, applicants had applied for registration of their trade mark KYK in Classes 7 and 12 under No.1460575 and 1460576 respectively. These applications were advertised in the trade mark journal and are pending registration. 4. The applicants trade mark KYK is a coined expression which has no dictionary meaning and was honestly and bonafidely conceived and adopted by its founder. The trade mark has no descriptive relevance and meaning. The said trade mark is inherently distinctive and has come to be exclusively associated with the applicant. 5. It is pertinent to note that the international fame and repute of the applicants trade mark KYK is not limited to any geographical limitation where the applicant may have actual presence in terms of business operations but the said fame and reputation of the applicant’s trade mark has travelled to other jurisdictions including to those where the applicants may currently have active business operations. The applicants have advertised and popularized the said trade mark internationally as well as in India. The said trade mark enjoys trans-border reputation by advertising in various magazines published outside India but having circulation in India. The goods bearing the said trade mark is widely known in India including other foreign countries due to the superior quality of the goods and the extensive publicity and it enjoys a great reputation of being associated exclusively with the applicant. By virtue of superior quality the applicants goods and services have met with voluminous and enviable sales into enormous goodwill and reputation among the members of the trade and public. By virtue of the superior quality of the goods and the international fame of the applicants products, which international reputation having spilled over to India, the applicants mark has come to be exclusively associated with the applicants in India and the members of the trade and customers in India continue to associate the same with the applicant and with none else. The applicant is therefore the true owner, lawful proprietor and prior user of the trade mark KYK internationally as well as in India in relation to the aforesaid goods. The trade mark by long and continuous use in international markets as well as in India qualified to be accorded as a well known trade mark under the provisions of Section 2(1)(zg) of the Act and deserves to be protected as such. 6. The respondent has obtained registration of the impugned trade mark KYK which is an identical and deceptively similar trade mark to that of the applicant’s well known and reputed trade mark KYK. The respondents have filed a suit against the applicant for injunction restraining the applicants from infringing the respondent’s registered trade mark. The registration of the impugned trade mark are being obtained by playing fraud upon the Registrar of Trade Marks. The respondents claim use since 10.10.1996 in respect of parts and fittings in Class 12 and as regards goods in respect of bearings, filters, gear and gear parts falling in Class 7 since 10.4.2000. It is however submitted that the applicants trade mark was bonafidely adopted by the applicant as back as in year 1952. The adoption of the impugned trade mark by the respondents is absolutely dishonest, malafide and in bad faith and is in contravention of the provisions of the Act. Any use by the respondent therefore is void ab initio and no use in the eyes of law. 7. The applicant was not aware of the advertisement of the impugned trade mark. The registration has been obtained by fraud by making false and misleading statements and concealing material facts and matters before the Registrar. The said registration is illegal and invalid and deserves to be cancelled. It is also pertinent to mention that the writing style of the respondent’s impugned trade mark KYK as depicted on their product packaging is also deceptively similar to the writing style and artistic font of the applicant’s KYK. It cannot be a mere coincidence or a case of accidental similarity. The impugned trade mark was registered without any bondafide intention on the part of the respondent to use the same in respect of the goods for which it was registered. The impugned trade mark was registered with malafide intention to pass off their goods as those of the applicants. The respondent has never used the impugned trade mark in respect of the goods for which the registration was sought. The impugned trade mark was neither distinctive nor capable of being distinguished on the date of the application. The registration is in contravention of the provisions of Section 9 of the Act. The impugned trade mark on the date of application was bound to cause confusion and deception among the public as the applicant is a prior user and therefore the registration is in contravention of Section 11 of the Act. The entry pertaining to the impugned trade mark was wrongly made and which was wrongly remaining on the register and the same would affect the purity of the Registrar. The registration has been made without sufficient cause. In the interest of purity of the register and public at large the impugned trade mark may be removed. 8. The applicant is a ‘person aggrieved’ and can maintain and institute this action as it is engaged in the same/similar trade and is a prior adopter of the trade mark KYK. The respondent filed a Civil Suit No.C.S.(OS) No.1305/2009 before the Hon’ble Delhi High Court and it is pending. The applicant has the locus standi to file and institute the present application for rectification of the impugned trade mark. 9. The respondents herein filed their counter statement stating that the present application is not maintainable as the same is devoid of truth and legality. The petition is not maintainable either in law or on facts. The application is a counter blast and is an abuse of process of law. The respondent has not concealed or misrepresented any facts before the Registrar. The registration is lawful, valid and regular. The adoption of the trade mark KYK by the respondent is bonafide and honest and the same has been used by the respondent continuously since the year 1996. The claim of the applicant is bald and basically devoid of any truth and legality and therefore this application is liable to be dismissed. 10. The respondent is an old established firm engaged in the business of marketing and selling automobile goods, parts and fittings including bearings, filters, gear and gear parts, v-belts, fan belts and machinery parts for use in motor land vehicle. The respondent in the year 1996 adopted the trade mark KYK in respect of automobile parts and fittings. Since adoption, the respondent has been continuously and uninterruptedly using the same till date. 11. The respondent has assigned the said trade mark to its sister concern, M/s. V.K. Automobiles whose proprietor is Shri Vivek Kocher, along with its goodwill and reputation. Accordingly, Shri Vivek Kocher proprietor of the V.K. Automobiles is the lawful owner and proprietor of the registered trade mark KYK. The respondent has acquired and taken over the said trade mark vide agreement dated 25.8.2000 along with all rights and goodwill and reputation pertaining to the said trade mark in respect of business of manufacturing and selling of said goods. The respondent has adopted and has been using the said trade mark since the year 1996 continuously and uninterruptedly in relation to automobile parts and fittings etc. It is very common practice to adopt the trade mark having three letters in the bearing industry. All popular trade marks in India and all over the world consists of three letters, namely, SKF, NBC etc. The respondent invented and adopted the trade mark after the name of family members and their caste. It is further reiterated that the said trade mark was adopted after the name of the father, namely, Kuldeep Rai Kocher, uncle Yashwant Rai Kocher and the caste namely, Kocher. 12. The adoption is therefore absolutely bonafide and honest and the same has been adopted after the name of the family members and the caste namely, Kocher. 13. The applicants cannot attribute any dishonesty and malafide to the respondent with regard to adoption and use of the trade mark. Accordingly, the adoption and user of the said trade mark is bonafide and honest. On the contrary it is submitted that the applicant has no case at all. The applicant has no case in respect of their claim of prior and continuous user. The sales invoices and other documents is forged and fabricated and the applicant is called upon to produce the originals of the same. It is also pertinent to mention that the applicant company has been declared bankrupt in the year 2000 and thereafter the applicant has never resumed its trade and business of any nature. The rest of the averments were denied by the respondents. 14. The applicants filed their reply to the counter statement denying the averments made in the counter statement. 15. We have heard Shri M.K. Miglani, the learned Counsel for the applicant and Shri Satish Kumar, the learned Counsel for the respondent on 19.10.2011. 16. The learned Counsel for the applicant submitted that the two applications are for rectification of the trade mark “KYK” registered under Nos.949032 in class 12 and 1291522 in class 7. The application under No.949032 in class 12 was filed on 21.8.2000 claiming user since 10.10.1996 and the other application No.1291522 in class 7 was filed on 21.6.2004 claiming user since 10.4.2000. The Counsel then relied on the averment made in para 23 of the plaint [C.S.(OS) No.1305 of 2009) filed before the Hon’ble High Court of Delhi] - “23. That the resemblance between the plaintiffs’ said trade mark and that of the defendants’ impugned trade mark and trade name is so close that it can hardly occur except by deliberate imitation. The defendant adopted and started using the impugned trade mark and trade name in full knowledge of the plaintiffs’ said rights. The unwary purchasers which include gullible motor mechanics as well as each and every section of society including the not so well educated/gullible people are bound to be deceived in dealing with and purchasing the defendant’s impugned goods and business under the impugned trade mark and trade name under the impression that it is emanating from the plaintiffs source or that some vital links exist between the plaintiffs and the defendant’s…” The Counsel submitted that it is the respondent’s own admission that there was likelihood of confusion being caused. 17. The applicant company was incorporated in the year 1952. The company was founded by Mr. Kujosies Yamamoto under the name Kabusikikaisiya Yamakei Bearing Limited. The trade mark KYK was coined by taking the first letter from the corporate name of the company Kabusikikaisiya Yamakei coined with the first letter of his name Kiyosies. The goods bearing the trade mark KYK were exported to the United States as early as 1953. The said trade mark was registered in the year 1966 in Japan. 18. The applicant further stated that the respondent had started using the trade mark only since 1996 very much subsequent to that of the applicants. The Counsel then relied on the notices from the Federal Register dated 6.6.2007 and submitted that they would prove their user since 1952 which was clearly stated therein. The applicants have filed invoice from the year 1989. 19. The Counsel then submitted that there are discrepancies as to the trading style. The application has been filed by KYK International but the sales figures are given by M/s. V.K. Automobiles at page 44 of the counter statement and at page 45 the sales figures are given by KYK International. The registration has therefore been obtained by fraud. 20. The Counsel then relied on few judgments: (i) 2007 (34) PTC 731 (IPAB) – Jain Doors Pvt. Ltd., Applicant v. Suresh Kumar Jain, Respondent was relied on to say that though the respondents claim user since 1996 there is nothing on record to prove the same and therefore the registration has been obtained by false statement. The said order has been confirmed by the Hon’ble High Court of Delhi. (ii) 1995 PTC 165 – Power Control Appliances and others, Plaintiff v. Sumeet Machines Pvt. Ltd. and others - Settled principle of law relating to trade mark is that there can be only one mark, one source and one proprietor. (iii) 2004 (28) PTC 585 (SC) – Milment Oftho Industries & Ors., Appellants v. Allergan Inc., Respondent - The mere fact that the respondent has not been using the trade mark in India would be irrelevant if they were first in the world market. 21. In reply, the learned Counsel for the respondent submitted that in the Interlocutory Petition filed in the suit before the Delhi High Court there was an interim arrangement passed against which the applicant had not preferred any appeal and so that order has become final. The Counsel then submitted that their adoption was bonafide and honest. 22. The Counsel then relied on few judgments: (i) Laws on Intellectual Property by W.R. Cornish 3rd Edition page 550 – “…The same considerations apply when the plaintiff establishes a business reputation in one place and the defendant then sets up a similar business in another so as to suggest that the plaintiff has opened a new outlet. (ii) 1967 RPC 581 – Alain Bernardin Et Compagnie, Plaintiff v. Pavilion Properties Limited, Defendants – “…a trader cannot acquire goodwill in this country for the purposes of a passing off action without user of some sort here. Although in certain cases slight activities might suffice, the mere dissemination of material advertising the plaintiffs’ business activities abroad could not constitute user in this country sufficient to acquire a reputation in the sense material for a passing off action, and an interlocutory injunction could not therefore be granted.” (iii) 1980 RPC 343 – The Athletes Foot Marketing Associates Inc., Plaintiff v. Cobra Sports Ltd. and another, Defendants – “…Now, in the present case the most remarkable fact of all is that the plaintiffs disclose not one single solitary transaction by way of trade with anybody in this country at all. The nearest they get to this essential requirement is to show that they had entered into some kind of negotiations with Ravel with a view to the grant of a franchise to that Company. But, to date, this has not come to anything. But the matter does not rest there. There is not even a single instance given of a transaction by one of the plaintiffs’ … The principle was expressed by Walton J. at page 350 as follows: …as a matter of principle, no trader can complain of passing off as against him in any territory --and it will usually be defined by national boundaries, although it is well conceivable in the modern world that it will not – in which he has no customers, nobody who is in a trade relation with him. This will normally shortly be expressed by saying that he does not carry on any trade in that particular country…but the inwardness of it will be that he has not customers in that country: no people who buy his goods or make use of his services (as the case may be) there.” (iv) 1998 (18) PTC (Bom) – Cluett Peabody & co. Inc., Petitioner v. Arrow Apparals, Respondents – Courts shall not protect the rights of a proprietor unless there is sale of the goods to which the mark is applied to. Without use, the proprietor cannot restrain others use. (v) 1999 (19) PTC 238 Del – Herb Shop, Petitioner v. Nectar (U.K.) Ltd., Respondents – “…Transborder reputation -- Indian Company claiming to be prior user in India -- Interim injunction sought against the foreign company which started using trade mark in India recently -- The company unable to produce any authorization for use of trade mark apart from its use as trade name – Interim injunction granted.” (vi) 1999 (19) PTC 775 (Del) – M/s. Smithkline Beecham Plc., & Ors. v. M/s. Hindustan Lever Limited & Ors., Defendants – “…Transborder reputation – No evidence produced on record to show any goodwill of the product in the country – Prima facie claim of passing off not maintainable – Interim injunction granted refused.” (vii) 2001 (21) PTC 513 (Del) – The Gillette Company and others, Plaintiffs v. A.K. Stationery and others, Defendants – “Section 33 -- Prior user – Use in India relevant.” (viii) 2006 (32) PTC 275 (Del) – Asia Pacific Breweries Ltd., Plaintiff v. Superior Industries Limited, Defendant – “…Plaintiff has neither produced any evidence regarding foreign registrations or sales of their TIGER beer in foreign countries, nor they have produced any substantial evidence to show prima facie that the extent of sale of their product in India is so enormous that the word TIGER has assumed secondary significance that it denotes their product only. Even labels under which they are selling TIGER beer and canes have not been produced. So practically there is no material showing prima facie that the two competing labels are deceptively similar…” 23. In rejoinder the Counsel for applicant submitted that the respondent had not given any vital reasons for adoption of the trade mark. The Counsel then relied on the observations made in the Civil Suit. 24. We have heard and considered the arguments of both and have gone through the pleadings and documents. 25. The two original rectification applications have been filed by the applicants being aggrieved by the Civil Suit filed by the respondents before the Hon’ble High Court of Delhi. The applicants have the locus to file and maintain the application for rectification. The marks are identical and are used in respect of identical goods. By the impugned registration, the applicant is likely to be injured or damaged in some way or the other. 26. The other issue is regarding the proprietorship of the trade mark “KYK”. The respondents have not placed before us any record or documents to say that V.K. Automobiles is also the proprietor of the trade mark. The Civil Suit has been filed by V.K. Automobiles and M/s. KYK International. The first application under No.949032 filed on 21.8.2000 has been filed by KYK Bearing International. On 25.8.2000, KYK Bearing International has assigned the trade mark in favour of V.K. Automobiles. If that is the case then how is it the application under No.1291522 on 21.6.2004 has been filed by KYK International. There is nothing on record to say if there had been any partial assignment. That apart the respondents claims user since 1996 as regards Class 12 application and 2000 as regards Class 7 application. When the mark was assigned to V.K. Automobiles in the year 2000 then the 1st bill dated 1999 in the name of V.K. Automobiles cannot be taken note of for deciding this case as it is not clear as to the proprietor. The respondent thus cannot be the proprietor of the trade mark and the registration is therefore in contravention of Section 18 of the Act. 27. The other issue is regarding the user claimed by the respondents in their application for registration. The respondents claim user since 1996 and 2000 in their application. There is no evidence prior to 2005. It is also the case of the respondent that the manufacturing of bearings were carried out through one M/s. Techno Mark Grindwell Industries. The 1st invoice is dated 2005 by M/s. Techno Mark Grindwell Industries. The respondents have not proved their user as claimed. 28. The respondents have claimed user since 10.10.1996 for Class 12 goods and 10.4.2000 for Class 7 goods. The respondent’s contention is that they had been dealing through one M/s. Techno Mark Grindwell Industries. It is not clear as to how long they were carrying on business through M/s. Techno Mark Grindwell Industries. As stated earlier 1st invoice is of the year 2005. In the absence of any documents either from 1996 or at least from 2000 the claim of user before the Registrar is wrong statement for which reason the mark cannot be allowed to continue on the Register. 29. As held earlier, the respondents having not given any cogent evidence to prove their user since the date as claimed in their application for registration, we do not think it correct to allow the mark to continue on the register. 30. The judgments relied on by both the parties are not dealt into as it will only multiply authorities. 31. For the reasons stated above, the impugned trade marks registered under Nos.1291522 and 949032 in Class 7 and 12 respectively are cancelled with a direction to the Registrar of Trade Marks. No order as to costs. Miscellaneous Petitions are closed. (S. Usha) (Justice Prabha Sridevan) Vice-Chairman Chairman (This order is being published for present information and should not be taken as a certified copy issued by the Board.)

MARUTHI CAR PURCHASED ON LOAN AND RENEWAL OF LOAN AGAIN - NOT COMES UNDER CONSUMER ACT=Adjustment of the loan by the Bank to which the Petitioner had aggrieved, is also beyond the purview of the Consumer Protection Act, 1986 as the same (even it is presuming but not holding to be wrongfully done) cannot be agitated under the Consumer Protection Act as the same is money suit simplicitor between the parties. Under these circumstances, adjustment of amount due against the previous loan would not amount to deficiency in rendering any service

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 4155 of 2007 (From the Order dated 31.10.2007 in Appeal No. 322/07 of the State Consumer Disputes Redressal Commission, UT, Chandigarh) Ram Saran Malhotra R/o House No. 3261/1, Sector-41-D, Chandigarh … Petitioner VERSUS 1. Sales Director, Citicorp Maruti Finance Ltd. Anna Salai Post Office, Chennai 2. Service Manager, Citicorp Maruti Finance Ltd. Anna Salai Post Office, Chennai 3. Credit Manager, Citicorp Maruti Finance Ltd. SCO 124-125, Sector 34-A, Chandigarh 4. Auto Sales Manager, Citicorp Maruti Finance Ltd. SCO 124-125, Sector 34-A, Chandigarh 5. Rajesh Narang, In Charge Axcess Marketing SCO 97, Ist Floor, Sector 44- C Chandigarh 6. Manish Kumar, Agent Axcess Marketing, SCO NO. 97, Ist Floor, Sector-44 C Chandigarh … Respondents BEFORE: - HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON’BLE MRS. VINEETA RAI, MEMBER For the Petitioner : Mr. Narender S. Yadav, Advocate For the Respondents : Mr. Jitender Dewan, Advocate For Mr. Hira Singh, Advocate PRONOUNCED ON: .02.2012 O R D E R ASHOK BHAN, J., PRESIDENT Complainant, Petitioner herein purchased a Maruti Car bearing No. CH-03-A-1399 in March, 2000 after obtaining a loan from the Respondent. The repayment was to be made in 5 years in equated installment of Rs.3,417/- and 59 post-dated cheques drawn in favour of the Respondent were issued. Installments were paid till February, 2005 though some penalty was shown due towards the Complainant on account of dis-honouring of certain post-date cheques. Petitioner asked for second loan of Rs.1,10,000/- on the same vehicle which was to be repaid in 36 installments of Rs.3700/- per month. As per agreement executed between the Petitioner and the Respondent, an advance receipt and 36 post-dated cheques of Rs.3,700/- each for February, 2005 to January, 2008 were issued by the Petitioner in favour of the Respondent. A letter was received by the Petitioner with regard to approval of his loan application but the amount of loan was not mentioned though the account No.CEC-462-1010056 was mentioned. On 5.3.05, a draft of Rs.75,854/- was received by the Petitioner but he was aggrieved that instead of sanctioning of loan of Rs.1,10,000/-, amount of Rs.75,854/- only was disbursed to him. In response to his enquiries, he was handed over a slip in which it was mentioned that the approved loan amount was Rs.98,500/- out of which Rs.12,745/- had been deducted on account old loan. Petitioner filed the complaint with the averment that a sum of Rs.34,145/- was illegally withheld by the Respondent and he had been charged excess amount. A direction was sought against the Respondent to issue a copy of loan agreement and payment of Rs.24,081.87 with interest @24% from the date of approval. Rs.10 lakh were claimed as compensation and Rs.50,000/- as costs of litigation. Respondent, on being served, entered appearance. Factum of availing of loan by the Petitioner vide loan agreement dated 2.3.02 was admitted. It was submitted that the Petitioner had been informed that the second loan would be sanctioned only on clearing the outstanding loan amount in the previous account bearing No. DEA-462-0363421. That the Petitioner vide his letter dated 14.02.05 had agreed to adjust his previous loan amount in the subsequent one. It was submitted that loan of Rs.95,758/- and not Rs.1,10,000/- as alleged by the Petitioner, was sanctioned. It was stated that as per assessment of the vehicle, the value of the car was estimated at Rs.1,15,000/- as given in the valuation report and accordingly, a loan of 83.27% of the evaluated amount, i.e., Rs.95,758/- was sanctioned out of which Rs.19,903.06 lying outstanding in the previous loan account were adjusted and thus a sum of Rs.75,854.94 was disbursed to the Petitioner on 3.3.05. Copies of the statement of account and loan agreement dated 18.02.05 were brought on record. It was submitted that cheque for the month of February, 2005 had been encashed by the OP No.6 for which OP Nos. 1 to 5 were not liable. It was submitted that loan was to be repaid by monthly installments of Rs.3,417/- spanning over a period of 59 months. In spite of the fact that certain cheques issued by the Petitioner were dishonoured, Respondent did not recall the loan facility. It was stated that amount of Rs.19,903/- was laying outstanding in the previous loan account and the Petitioner himself requested the Respondent that the outstanding amount in the previous loan account be adjusted in the subsequent one as the loan was being advanced against the same vehicle. After going through the pleadings and the evidence led by the parties, District Forum dismissed the complaint on the ground that under a hire purchase transaction, the financer does not render any service within the meaning of Consumer Protection Act, 1986 and the Petitioner was, thus, not a ‘consumer’ as defined in Section 2 (1) (d) of the Act. District Forum relied upon the judgment of this Commission in R.P.No. 827 of 2006 titled Ram Deshlahara Vs. Magma Leasing Ltd. – III 2006 CPJ 247 (NC). Feeling aggrieved, Petitioner filed the appeal before the State Commission which has been dismissed by the impugned order. From the narration of the facts given above, it is evident that the Petitioner had taken two loans; first loan was taken in March, 2000 which was to be repaid in 59 equated installments of Rs.3,417/- each. The installments were paid till February, 2005. Some penalty was levied by the Respondent as certain post-dated cheques issued by the Petitioner were dis-honoured. Petitioner applied for raising loan of Rs.1,10,000/- against the same vehicle. Keeping in view the value of the vehicle, Respondent agreed to disburse a loan of Rs.95,758/-. Respondent informed the Petitioner that the loan amount would be disbursed only after clearing the outstanding loan amount in the previous loan account. Petitioner vide his letter dated 14.02.05, agreed to adjust the previous loan amount in the subsequent one. The contents of letter dated 14.02.05 read as under:- “ I, Ram Saran Malhotra having an Auto Loan from your Bank. My account No. is CEA/462/0363421. I am taking further cash loan on this car. So, you are requested to adjust my previous loan on my fresh loan. “ As the Petitioner agreed to the adjustment of outstanding amount due in the previous loan account, Respondent released Rs.75,854.94 after adjusting Rs.19,903.06 from the sanctioned loan amount of Rs.95,758/- being 83.23% of Rs.1,15,000/- i.e. evaluated value of the car. Adjustment of the loan by the Bank to which the Petitioner had aggrieved, is also beyond the purview of the Consumer Protection Act, 1986 as the same (even it is presuming but not holding to be wrongfully done) cannot be agitated under the Consumer Protection Act as the same is money suit simplicitor between the parties. Under these circumstances, adjustment of amount due against the previous loan would not amount to deficiency in rendering any service . For the reasons stated above, we do not find any merit in this Revision Petition and dismiss the same leaving the parties to bear their respective costs. ….. . . . . . . . . . . . . . . (ASHOK BHAN J.) PRESIDENT . . . . . . . . . . . . . . . . (VINEETA RAI) MEMBER Yd/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 4155 of 2007 (From the Order dated 31.10.2007 in Appeal No. 322/07 of the State Consumer Disputes Redressal Commission, UT, Chandigarh) Ram Saran Malhotra R/o House No. 3261/1, Sector-41-D, Chandigarh … Petitioner VERSUS 1. Sales Director, Citicorp Maruti Finance Ltd. Anna Salai Post Office, Chennai 2. Service Manager, Citicorp Maruti Finance Ltd. Anna Salai Post Office, Chennai 3. Credit Manager, Citicorp Maruti Finance Ltd. SCO 124-125, Sector 34-A, Chandigarh 4. Auto Sales Manager, Citicorp Maruti Finance Ltd. SCO 124-125, Sector 34-A, Chandigarh 5. Rajesh Narang, In Charge Axcess Marketing SCO 97, Ist Floor, Sector 44- C Chandigarh 5. Manish Kumar, Agent Axcess Marketing, SCO NO. 97, Ist Floor, Sector-44 C Chandigarh … Respondents BEFORE: - HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON’BLE MRS. VINEETA RAI, MEMBER The enclosed order is sent herewith for your kind perusal. If approved, the same may be listed for pronouncement. ….. . . . . . . . . . . . . . . (ASHOK BHAN J.) PRESIDENT 09.02.12 Hon’ble Mrs. Vineeta Rai, Member

BUILDING CONSTRUCTED WITHOUT QUALITY=the photographs produced by the complainant are sufficient to establish that the quality of the construction work is very poor. The technical report of the architect cannot be ignored on the ground that these are the words of the complainant. The report along with the photographs is sufficient to prove that the opposite party had committed deficiency in service, causing loss to the complainant. The plea that the opposite party had done the work as per the directions of Shri P. S. Raizada and Shri Pandey, the representatives of the complainant, is also not acceptable because these persons were authorised by the complainant for making timely payment to the opposite party, so that the work may not be stopped for want of funds. Nowhere in the agreement is it stated that these persons would also verify the quality of work. Therefore, we are of the view that the appeal filed by the opposite party is devoid of merit and hence it is liable to be dismissed.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITIONS NO. 3643-3644 OF 2011 (From the order dated 22.03.2011 of Uttarakhand State Consumer Disputes Redressal Commission, Dehradun in First Appeals no. 78 and 83 of 2009) Shambhu Paswan 215, Chandreshwar Nagar Hrishikesh Petitioner District Dehradun Uttarakhand versus Shri Kuldeep Chandra Bhasin MIG - 61, Hrishikesh Colony Hrishikesh, District Dehradun Respondent Uttarakhand BEFORE: HON’BLE MR. ANUPAM DASGUPTA PRESIDING MEMBER HON’BLE MR. SURESH CHANDRA MEMBER For the Petitioner Mr. Arindam Mukherjee, Advocate Pronounced on 14th February 2012 ORDER ANUPAM DASGUPTA This revision petition challenges the order dated 22.03.2011 passed by the Uttarakhand State Consumer Disputes Redressal Commission, Dehradun (in short, ‘the State Commission’) in First Appeals no. 78 and 83 of 2009. By this order, the State Commission dismissed both the appeals filed by the petitioner as well as the respondent against the order dated 23.04.2009 of the District Consumer Disputes Redressal Forum, Dehradun (in short, ‘the District Forum’) in consumer complaint no. 56 of 2007. This order of the District Forum entailed directions to the opposite party (OP – Petitioner herein) to pay to the complainant (respondent herein) a sum of Rs.5,50,000/- within 30 days from the date of the order, failing which the OP was required to also pay interest @ 9% per annum on the said amount from the date of filing of the complaint till the date of actual payment. The District Forum also permitted the OP/Petitioner to take away the unused building material lying in the complainant’s premises. Against this order, the complainant filed appeal no. 78 of 2009 before the State Commission seeking enhancement of the relief granted by the District Forum while the OP filed appeal no. 83 of 2009 challenging the validity of the District Forum’s order. 2. After considering the pleadings, evidence and documents brought on record and hearing the parties, the State Commission dismissed both the appeals by its impugned order, with the following observations/findings: “7. We considered the respective submissions. The arguments advanced by the learned counsel for the opposite party are not tenable because the photographs produced by the complainant are sufficient to establish that the quality of the construction work is very poor. The technical report of the architect cannot be ignored on the ground that these are the words of the complainant. The report along with the photographs is sufficient to prove that the opposite party had committed deficiency in service, causing loss to the complainant. The plea that the opposite party had done the work as per the directions of Shri P. S. Raizada and Shri Pandey, the representatives of the complainant, is also not acceptable because these persons were authorised by the complainant for making timely payment to the opposite party, so that the work may not be stopped for want of funds. Nowhere in the agreement is it stated that these persons would also verify the quality of work. Therefore, we are of the view that the appeal filed by the opposite party is devoid of merit and hence it is liable to be dismissed. 8. We are also of the view the District Forum has adequately compensated the complainant for the loss suffered by him, by directing the opposite party to refund all the money received from the complainant. Regarding compensation for mental agony and escalation in construction cost, the District Forum has awarded interest @ 9% per annum on the amount. This interest rate is higher than the rate which is generally awarded by the Consumer Fora. The award of interest is always in lieu of compensation for mental and physical agony and, therefore, the complainant cannot be granted an additional compensation for the mental agony. The higher rate of interest also covers the inflationary effect on construction cost, if any, Further, the District Forum has not directed the opposite party to collect all that material which has been used in the construction work by scratching out or dismantling if and thus, the complainant is not in loss because he owns these goods along with the amount of Rs.5,50,000/-. This way, the opposite party has been penalised sufficiently for the deficiency made by him. What the District Forum has permitted the opposite party is to lift the unutilised material lying in complainant’s premises, if any. Therefore, the complainant should not have any apprehension in this regard. Thus, the appeal filed by the complainant is also liable to be dismissed”. 3. We have heard the learned counsel for the petitioner/OP at the stage of admission and considered the documents. As a reading of the aforesaid extracts of the impugned order would clearly show, the State Commission has properly analysed the pleadings and evidence on record and arrived at cogent findings giving reasons therefor. There is, therefore, no ground whatsoever to interfere with the impugned order of the State Commission under the provisions of section 21(b) of the Consumer Protection Act, 1986 because the order does not suffer from any jurisdictional error, legal infirmity or material irregularity. 4. The revision petition is accordingly dismissed in limine, leaving the petitioner to bear his own costs. Sd/- …………………………………. [Anupam Dasgupta] Presiding Member Sd/- …………………………………. [Suresh Chandra] Member satish

it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. 20

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2474-2475 OF 2012 (Arising out of SLP (C) Nos. 7595-96 of 2011 Office of the Chief Post Master General & Ors. .... Appellant (s) Versus Living Media India Ltd. & Anr. .... Respondent(s) J U D G M E N T P. Sathasivam, J. 1) Leave granted. 2) The following issues arise for consideration: a) Whether the Office of the Chief Post Master General has shown sufficient cause for condoning the delay of 427 days in filing SLPs before this Court. Depending on the outcome of the above issue, other issues to be considered are: 1 b) Whether the impugned advertisement inserted in the Reader's Digest issue of December, 2005 is in conformity with the requirement of law. c) Whether the Department has made out a case for interference under Article 136 of the Constitution of India to reopen concurrent findings of fact rendered by the High Court. 3) These appeals have been filed against the common final judgment and order dated 11.09.2009 passed by the High Court of Delhi at New Delhi in LPA Nos. 418 and 1006 of 2007 whereby the Division Bench while upholding the judgment and order dated 28.03.2007 passed by the learned single Judge of the same High Court in Writ Petition (C) Nos. 22679-80 of 2005 and Writ Petition (C) No. 4985 of 2006 dismissed the appeals filed by the appellants herein. 4) Brief Facts: (a) Living Media India Ltd.-Respondent No. 1 is a company incorporated under the Companies Act, 1956 which publishes 2 the magazines "Reader's Digest" and "India Today". These magazines are registered newspapers vide Registration Nos. DL 11077/03-05 and DL 11021/01-05 respectively issued by the Department of Posts, Office of the Chief Post Master General, Delhi Circle, New Delhi (in short `Postal Department')- appellant herein under the provisions of the Indian Post Office Act, 1898 (in short `the Act') read with the Indian Post Office Rules, 1933 (in short `the Rules') and the Post Office Guide and are entitled for transmission by post under concessional rate of postage. (b) On 14.10.2005, the Manager (Circulation), Living Media India Ltd., submitted an application to the Postal Department seeking permission to post December, 2005 issue of Reader's Digest magazine containing the advertisement of Toyota Motor Corporation in the form of book-let with Calendar for the year 2006 at concessional rates in New Delhi. By letter dated 08.11.2005, the Postal Department denied the grant of permission for mailing the said issue at concessional rates on the ground that the book-let containing advertisement with calendar is neither a supplement nor a part and parcel of the 3 publication. On 17.11.2005, the Director (Publishing), Living Media India once again submitted an application seeking the same permission which was also denied by the Postal Department by letter dated 21.11.2005. (c) In the same way, the Postal Department also refused to grant concessional rate of postage to post the issue dated December 26, 2005 of "India Today' magazine containing a book-let of Amway India Enterprises titled "Amway" vide their letters dated 18.02.2006 and 17.03.2006 stating that the said magazine was also not entitled to avail the benefit of concessional rate available to registered newspapers. (d) Respondent No. 1, being aggrieved by the decision of the Postal Department filed Writ Petition (C) Nos. 22679-80 of 2005 and Writ Petition (C) No. 4985 of 2006 before the High Court. Learned single Judge of the High Court, by order dated 28.03.2007 allowed both the petitions filed by Respondent No. 1 herein. (e) Being aggrieved, the Postal Department filed LPA Nos. 418 and 1006 of 2007 before the High Court. The Division Bench of the High Court, vide common final judgment and 4 order dated 11.09.2009, while upholding the judgment of the learned single Judge, dismissed both the appeals. Challenging the said order, the Postal Department has preferred these appeals by way of special leave before this Court. 5) Heard Mr. H. P. Raval, learned Additional Solicitor General for the appellants-Department of Posts and Mr. Soli J. Sorabjee, learned senior counsel for the respondents. Delay in filing the SLPs: 6) Since learned senior counsel for the respondents seriously objected to the conduct of the appellants in approaching this Court after enormous and inordinate delay of 427 days in filing the above appeals, we intend to find out whether there is any "sufficient cause" for the condonation of such a huge delay. In view of the fact that the application for condonation of delay in filing the SLPs dated 10.02.2011 does not contain acceptable and plausible reasons, we permitted the appellant-Postal Department to file a better affidavit explaining the reasons for the same. Pursuant to the same, an affidavit has been filed on 26.12.2011. After taking us through the same, learned Additional Solicitor General 5 submitted that in view of series of decisions of this Court and the appellant being a Government Department, delay may be condoned and an opportunity may be given to put-forth their stand as to the impugned judgment of the High Court. 7) Before going into the reasons furnished by the Department for the delay, let us consider various decisions of this Court relied on by Mr. Raval, learned ASG. i) In Collector, Land Acquisition, Anantnag and Another vs. Mst. Katiji and Others, (1987) 2 SCC 107, while considering "sufficient cause" in the light of Section 5 of the Limitation Act, 1963, this Court pointed out various principles for adopting liberal approach in condoning the delay in matters instituted in this Court. Learned ASG heavily relied on the following principles:- "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine 6 must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. 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. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." By showing the above principles, learned ASG submitted that there is no warrant for according step-motherly treatment when the "State" is the applicant. It is relevant to mention that in this case, the delay was only for four days. ii) In G. Ramegowda, Major and Others vs. Special Land Acquisition Officer, Bangalore, (1988) 2 SCC 142, the principles enunciated in paras 15 & 17 are heavily relied on by the learned ASG. They are:- "15. 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 7 not share the characteristics of decisions of private individuals. 17. Therefore, in assessing what, in a particular case, 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. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making." Considering the peculiar facts, namely, the change of government pleader who had taken away the certified copy after he ceases to be in office, the High Court condoned the delay which was affirmed by this Court. iii) In State of Haryana vs. Chandra Mani and Others, (1996) 3 SCC 132, while condoning the delay of 109 days in filing the LPA before the High Court, this Court has observed that certain amount of latitude within reasonable limits is permissible having regard to impersonal bureaucratic setup involving red-tapism. In the same decision, this Court directed the State to constitute legal cells to examine whether any legal principles are involved for decision by the courts or whether cases required adjustment at governmental level. 8 iv) In State of U.P. and Others vs. Harish Chandra and Others, (1996) 9 SCC 309, by giving similar reasons, as mentioned in Chandra Mani's case (supra) this Court, condoned the delay of 480 days in filing the SLP. v) In National Insurance Co. Ltd. vs. Giga Ram and Others, (2002) 10 SCC 176, this Court, after finding that the High Court was not justified in taking too technical a view of the facts and refusing to condone the delay, accepted the case of the appellant-Insurance Company by protecting the interest of the claimant and condoned the delay. It is relevant to point out that while accepting the stand of the Insurance Company for the delay, this Court has safeguarded the interest of the claimant also. vi) In State of Nagaland vs. Lipok Ao and Others, (2005) 3 SCC 752, this Court, while reiterating the principle that latitude be given to government's litigation, allowed the appeal filed by the State of Nagaland. It is also relevant to note here that this matter relates to criminal jurisdiction and delay in filing the SLP was only 57 days. 9 8) Though the learned ASG heavily relied on the above said decisions and the principles laid down, on going through all the factual details, we are of the view that there is no quarrel about the propositions inferred therein. However, considering the peculiar facts and circumstances of each case, this Court either condoned the delay or upheld the order of the High Court condoning the delay in filing appeal by the State. While keeping those principles in mind, let us consider the reasonings placed by the Postal Department with regard to the same. 9) In view of the stand taken by the Postal Department as to the reasons for the delay and the serious objections of the respondents, it is desirable to extract the entire statement as placed in the form of "better affidavit" by the officer of the appellant-Department:- "I, Aparajeet Pattanayak presently posted as SSRM, Air Mail Sorting Division, New Delhi, do hereby solemnly affirm and state as under:- 1) In the official capacity mentioned above, I am acquainted with the facts of the case on the basis of the information derived from the record. 2) On the last date of hearing i.e. 05.12.2011 this Hon'ble Court was pleased to allow the petitions to file better affidavit in support of the application for condonation of delay in filing Special Leave Petition. 10 3) It is submitted that the delay is not intentional but is on account of the departmental/administrative procedures involved in for filing the petition for Special Leave Petition. It is submitted that unlike the private litigant the matters relating to government are required to be considered at various levels and then only a decision is taken. 4) In the present case it would be evident from the following that delay has been caused due to unavoidable circumstances:- 11.09.2009 Date of judgment in LPA Nos. 418/2007 and 1006/2007. 29.10.2009 Certified copy of judgment not received from the Government counsel and hence copy of judgment was downloaded from the web site of Delhi High Court and office note was put by ASP (Court) proposing to refer the matter to Postal Directorate for opinion and further course of action for approval of the Chief Postmaster General, Delhi. 12.11.2009 Chief Postmaster General Delhi approved to refer the matter to Directorate. 16.12.2009 Directorate desired to submit legal opinion and certified copy of judgment. 08.01.2010 The counsel appearing on behalf of the petitioner had applied for the certified copy of the impugned judgment and order and the same was received by the Department on 08.01.2010. 11.01.2010 The desired documents supplied to Directorate. 25.01.2010 Directorate desired to submit copies of original writ petition filed by the party, counter affidavit thereto, copies of appeals filed by DOP & counter reply thereto. 11 12.02.2010 The desired documents supplied to Directorate. 17.02.2010 Directorate desired to send an official/officer well conversant with the case. 15.03.2010 Directorate asked to depute an officer well conversant with the case to collect the UO Note along with other documents to pursue the matter with Mr. Suresh Chandra Additional Legal Advisor. 06.04.2010 Shri Suresh Chandra, Additional Legal Advisor was contacted on 06.04.2010 and the matter was briefed thoroughly by ASP (Court). 25.06.2010 Case file collected from Directorate and handed over to Central Agency Section on 25.06.2010 under diary No. 1865/2010 dated 25.06.2010 as per advice of Additional Legal Advisor. 26.06.2010 to Central Agency Section sent the file back 30.06.2010 to the Postal Department with directions to send the same through Ministry of Law and Justice. 01.07.2010 to After receiving the file through proper 10.09.2010 channel. Central Agency Section sent the file to Ld ASG for his considered opinion and Ld. Additional Solicitor General opined that it is a fit case for filing the Special Leave Petition. 11.09.2010 to On receiving the opinion of Ld. ASG the 30.09.2010 file was sent to Central Agency for drafting the Special Leave Petition. 01.10.2010 Directorate informed that ASG had considered the case and found it fit for Special Leave Petition. 15.11.2010 The panel counsel prepared the draft of Special Leave Petition and submitted the 12 draft Special Leave Petition with file to Central Agency Section for further steps. The draft Special Leave Petition was forwarded to the Department by Central Agency Section for vetting. After factual verification, the draft Special Leave Petition was returned to Central Agency Section for typing and preparation of Paper Book which also took some time. 04.01.2011 Special Leave Petition remained pending due to non-availability of disputed magazines of Reader's Digest and India Today. Hence, ASG was requested to intervene and direct Shri Akash Pratap who handled the case to provide the magazines. 14.01.2011 Shri A.K. Sharma was requested to arrange to collect the above magazines from the record of Delhi High Court. 31.01.2011 SSRM Delhi Sorting Division was authorized to sign the affidavit on behalf of the respondent. 10.02.2011 Special Leave Petition filed in Supreme Court. 5. It is submitted that it is evident from the foregoing reasons that the delay caused in filing the petition was result of all the necessary and unavoidable office formalities and was bonafide and not deliberate or intentional and the petitioner was prevented by sufficient cause from filing the petition within the period of limitation. 6. It is further submitted that the petitioner humbly seeks leave to draw the kind attention of this Hon'ble Court to the views expressed by this Hon'ble Court that liberal approach may be adopted and that the Court should not take too strict and pedantic stand which will cause injustice while considering the application for condonation of delay, in terms of its judgments in the case of Collector Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors. and Bhag Singh & Anr. Vs. Major Daljeet Singh & Ors. It is 13 submitted that the principles for condonation of delay laid down in the above cited cases may therefore be adopted in the present case also. 7. This Hon'ble Court in G. Ramegowda Vs. Special Land Acquisition Officer, (1998) 2 SCC 142 laid down that the expression sufficient cause in Section 5 of the Limitation Act, 1963 must receive a liberal construction so as to advance substantial justice where no gross negligence or deliberate inaction of lack of bonafide is imputable to the party seeking condonation of delay. 8. In the matter of State of Haryana vs. Chandra Mani, reported in (1996) 3 SCC 132, this Hon'ble Court observed and laid down as follows:- "when the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note- making, file-pushing and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand but more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on the table for considerable time causing delay - intentional or otherwise - is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default, no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice- oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. 9. This Hon'ble Court in Union of India vs. Manager, Jain and Associates, 2001 (3) SCC 277 decided on 06.02.2011 has held that delay ought to be condoned when sufficiently explained particularly where party seeking condonation is the Government. It is further submitted that the Hon'ble High Court ought to have condoned the delay in considering 14 the public revenue involved and also because of the genuine difficulties and circumstances beyond the control of the petitioner, on account of which Special Leave Petition could not be filed within the time." 10) Before considering whether the reasons for justifying such a huge delay are acceptable or not, it is also useful to refer the decisions relied on by Mr. Soli J. Sorabjee, learned senior counsel for the respondents. i) In Commissioner of Wealth Tax, Bombay vs. Amateur Riders Club, Bombay, 1994 Supp (2) SCC 603, there is a delay of 264 days in filing the SLP by the Commissioner of Wealth Tax, Bombay. The explanation for the delay had been set out in petitioner's own words as under: ".....2 (g) The Advocate-on-Record got the special leave petition drafted from the drafting Advocate and sent the same for approval to the Board on June 24, 1993 along with the case file. (h) The Board returned the case file to the Advocate-on- Record on July 9, 1993 who re-sent the same to the Board on September 20, 1993 requesting that draft SLP was not approved by the Board. The Board after approving the draft SLP sent this file to CAS on October 1, 1993." After incorporating the above explanation, this Court refused to condone the delay by observing thus: "3. ... .... Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other 15 private litigant as, indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest. [Emphasis supplied] ii) In Pundlik Jalam Patil (dead) by LRS. vs. Executive Engineer, Jalgaon Medium Project and Another, (2008) 17 SC 448, the question was whether the respondent-Executive Engineer, Jalgaon Medium Project had shown sufficient cause to condone the delay of 1724 days in filing appeals before the High Court. In para 17, this Court held: ".....The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and "do not slumber over their rights". After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under:- "29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing 16 a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy. 30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest." 11) We have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in LPA Nos. 418 and 1006 of 2007 as 11.09.2009. Even according to the deponent, their 17 counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied only on 08.01.2010, i.e. after a period of nearly four months. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in 18 prosecuting the matter to this Court by taking appropriate steps. 12) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be 19 accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 13) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. 20 Accordingly, the appeals are liable to be dismissed on the ground of delay. 14) In view of our conclusion on issue (a), there is no need to go into the merits of the issues (b) and (c). The question of law raised is left open to be decided in an appropriate case. In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs. .................................................J. (P. SATHASIVAM) ..................................................J. (J. CHELAMESWAR) NEW DELHI; FEBRUARY 24, 2012. 21