1957 (2) TMI 59 - HC - Companies Law

Registered trade marks agent can plead before Registrar under Trade Marks Act: Court decision upheld.

The court upheld the Deputy Registrar's decision, affirming that a registered trade marks agent is entitled to plead before the Registrar of Trade Marks ... Right of a registered trade marks agent to plead before the Registrar - construction of the word 'act' in Section 80 of the Trade Marks Act - distinction between a tribunal and a Court; Registrar not a Court - application of provincial enactment (Bombay Pleaders Act, s.9) to proceedings before administrative tribunals - right to be heard under the Trade Marks Act and rules (procedural hearing before the Registrar)Right of a registered trade marks agent to plead before the Registrar - construction of the word 'act' in Section 80 of the Trade Marks Act - right to be heard under the Trade Marks Act and rules (procedural hearing before the Registrar) - A person registered as a trade marks agent is entitled to plead before the Registrar under Section 80 of the Trade Marks Act, 1940. - HELD THAT: - Section 80 permits a duly authorised agent, being either a legal practitioner or a person registered as a trade marks agent, to do any 'act' (other than making an affidavit) which by or under the Act is required to be done by a person. The statutory scheme and rules (including provisions for hearing and for service of counter-statements) demonstrate that parties have a statutory right to be heard before the Registrar. The word 'act' in Section 80 is wide and not confined to the technical sense applied in Order III, Rule 1 CPC; it encompasses acts such as arguing a party's case before the Registrar. The exception of the making of an affidavit confirms the Legislature intended to exclude only giving evidence by affidavit from the agent's functions, not oral advocacy. The English Act analogy does not compel a different construction, and authorities construing a differently-worded provision in another code do not control the meaning here. For these reasons a registered trade marks agent may plead before the Registrar in proceedings under the Trade Marks Act. [Paras 3, 5, 6]The Deputy Registrar was right in holding that a registered trade marks agent is entitled to plead before the Registrar; the appeal on this point is dismissed.Distinction between a tribunal and a Court; Registrar not a Court - application of provincial enactment (Bombay Pleaders Act, s.9) to proceedings before administrative tribunals - Proceedings before the Registrar of Trade Marks are not 'civil proceedings in any Court' within the meaning of Section 9 of the Bombay Pleaders Act, 1920, and therefore Section 9 does not bar a registered trade marks agent from pleading before the Registrar. - HELD THAT: - Although the Registrar is vested with certain powers analogous to a Civil Court for limited purposes (receiving evidence, administering oaths, etc.), that does not make the Registrar a 'Court' in the strict sense contemplated by the Bombay Pleaders Act. The Registrar is a tribunal distinct from a Court; administrative bodies may possess trappings of a Court without being Courts for statutory purposes. Consequently the prohibition in Section 9 against non-pleaders appearing or pleading in 'civil proceeding in any Court' does not extend to proceedings before the Registrar, and the proviso relied upon does not operate to deny recognised agents the right to act before the Registrar. [Paras 7, 8, 9]Section 9 of the Bombay Pleaders Act does not apply to proceedings before the Registrar, and cannot be relied on to prohibit a registered trade marks agent from pleading before the Registrar.Final Conclusion: The High Court affirms the Deputy Registrar's decision: a person registered as a trade marks agent may, under Section 80 of the Trade Marks Act, 1940, plead before the Registrar, and the Bombay Pleaders Act, s.9 does not preclude such representation because proceedings before the Registrar are not proceedings in a Court within the meaning of that Act; appeal dismissed with costs. Issues Involved:1. Entitlement of a registered trade marks agent to plead before the Registrar of Trade Marks under Section 80 of the Trade Marks Act, 1940.2. Interpretation of the term 'act' in Section 80 of the Trade Marks Act.3. Applicability of Section 9 of the Bombay Pleaders Act in relation to proceedings before the Registrar of Trade Marks.4. Whether the Registrar of Trade Marks can be considered a 'Court' under the Bombay Pleaders Act.Issue-Wise Detailed Analysis:1. Entitlement of a Registered Trade Marks Agent to Plead Before the Registrar of Trade Marks:The central question is whether a registered trade marks agent is entitled to plead before the Registrar of Trade Marks under Section 80 of the Trade Marks Act, 1940. The court analyzed Section 80, which states: 'Where by or under Act any act other than the making of an affidavit, is required to be done by any person, the act may, subject to prescribed conditions or in special cases with the consent of the Central Government, by done, in lieu of by that person himself, by a duly authorised agent, being either a legal practitioner or a person registered in the prescribed manner as a trade marks agent.' The court observed that legal practitioners and trade marks agents are placed on the same footing under this section, and there is no explicit restriction in Section 80 that would prevent a trade marks agent from pleading.2. Interpretation of the Term 'Act' in Section 80 of the Trade Marks Act:The petitioners argued that the term 'act' in Section 80 does not confer the power to plead, contending that 'act' refers to actions incidental to acting, not pleading. The court rejected this narrow interpretation, stating that there is no justification for confining the meaning of 'act' to exclude pleading. The court noted that the Trade Marks Act, 1940, modeled on the English Trade Marks Act, 1938, allows trade marks agents to plead before the Registrar. The court found the term 'act' in Section 80 broad enough to include the act of pleading.3. Applicability of Section 9 of the Bombay Pleaders Act in Relation to Proceedings Before the Registrar of Trade Marks:The petitioners contended that Section 9 of the Bombay Pleaders Act, which restricts non-pleaders from appearing, pleading, or acting in civil proceedings, should apply to proceedings before the Registrar. The court dismissed this argument, emphasizing that the Registrar is not a Court. Section 70(a) of the Trade Marks Act grants the Registrar certain powers of a Civil Court, but this does not make the Registrar a Court. The court cited the Privy Council's judgment in Shell Company of Australia Limited v. Federal Commr. of Taxation, which distinguishes administrative tribunals from Courts, even if they have some judicial functions.4. Whether the Registrar of Trade Marks Can Be Considered a 'Court' Under the Bombay Pleaders Act:The court examined whether the Registrar could be deemed a Court under the Bombay Pleaders Act. The petitioners argued that since an appeal from the Registrar's decision lies to the High Court, the Registrar should be considered a Court. The court rejected this, noting that the definition of 'Courts subordinate to the High Court' in the Bombay Pleaders Act does not automatically include the Registrar. The court emphasized that the Registrar is an administrative tribunal, not a Court, and thus the provisions of Section 9 of the Bombay Pleaders Act do not apply.Conclusion:The court upheld the Deputy Registrar's decision, affirming that a registered trade marks agent is entitled to plead before the Registrar of Trade Marks under Section 80 of the Trade Marks Act, 1940. The appeal was dismissed, and the petitioners were ordered to pay the costs of the appeal.