Recently Ishant wrote on the Delhi High Court’s broad interpretation of the term “leaving with the registrar” under the Trademark Rules with regard to strict adherence to the timeline to file a document with the Registry. In a similar vein, the question of adhering to a prescribed timeline recently popped up before the IPD too. In Vinay Kumar GB v. Sudhir Kumar and Anr., the Delhi High Court passed an order clarifying that the time limit of 30 days to file a rejoinder prescribed under Rule 7(x) of the IPD Rules is not mandatory. This would mean that even if the filing of the rejoinder exceeds the prescribed period, the court can accept it if it is satisfied that the delay occurred due to valid reasons.
This interpretation will surely benefit a lot of IP litigators practicing before the Delhi High Court. But why only “IP litigators”? And this is where it gets interesting. The Respondent tried to draw a parallel between the IPD Rules and Rule 5, Chapter VII of the Delhi High Court (Original Side) Rules, 2018, whereby the court can reject a replication filed after the prescribed time. For this, it resorted to Rule 7(xiii) of the IPD Rules, which applies the provisions of the Commercial Courts Act 2015 and the Original Side Rules on original petitions falling under IPD, as long as they are in consonance with the IPD Rules. Thus, the Respondent argued that just like the fate of replication in the Original Side Rules, the delayed rejoinder filed by the Plaintiff in the present case should be rejected.
The court, however, differed in opinion and emphasized on the latter part, that the Original Side Rules, 2018 will be applicable in the original IPD petitions only to the extent it is not inconsistent with IPD Rules. Discussing this “inconsistency”, the court explained that there can be 2 cases where it may exist-
When the IPD Rules and Original Side Rules are in “stark contrast” with one another;
When the Original Side Rules prescribe a specific consequence and the IPD Rules do not.
The court held that the second condition applies here. Comparing both provisions (Rule 5, Chapter VII of the Original Side Rules and Rule 7(x) of the IPD Rules) the Court read legislative intent into the categorial omission of consequences for a delayed rejoinder in the IPD Rule. Thereafter, it proceeded to hold that consequence in relation to a delayed replication in case of original suits, under the Original Side Rules cannot be applied in relation to delayed rejoinders in case of original IPD petitions.
To quickly explain the scheme of arrangement here- the Original Side Rules will apply, along with Commercial Courts Act, CPC and Patent Suit Rules, on Suits filed under the IPD Rules (Rule 14 of the IPD Rules). However, the Original Side Rules will apply in the case of Original Petitions filed under the IPD Rules only when there are no inconsistencies between the Original Side Rules and the IPD Rules (Rule 7(x) of the IPD Rules). Thus, the differentiating factor here seems to be whether the subject matter is a suit or a petition.
The court proceeded with the above understanding on the basis of the principle highlighted in State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti, that procedural provisions are ordinarily to be regarded as directory rather than mandatory and used it to hold that if the provision does not provide the consequence of exceeding the time limit prescribed, then the prescribed time limit should be treated as a direction. Thus, here the court took a broad and cautious approach of not reading too much into the provision and imposing the obligations that aren’t there in the first place.
Perhaps some food for thought from the present order is its reliance on the legislative intent behind not prescribing any consequences for the delayed filing of a rejoinder. The court observed that “where the IPD Rules does not envisage any such consequence of default, one cannot tinker with the legislative intent by importing, into the IPD Rules….” While the court discerned this intent by dissecting the (here competing) provisions- Rule 7(x) of the IPD Rules and Rule 5, Chapter VII of the Original Side Rules, I wonder what the benefits of not prescribing a similar fate for two seemingly similar situations could have been. Why is it that filing a revocation in a suit becomes time-barred, whereas a rejoinder in a petition does not? Or perhaps this was a case of over-reliance on legislative intent? ? [Sidenote: for those who may be interested in exploring the theoretical criticisms against relying on legislative intent, this short paper by Daniel B Rodriguez on legislative intent in the context of the US’ law of interpretation of statutes has some very interesting points.]