In December, 2022 Gaurangi wrote about a rather interesting case (Ab Mauri India Private Limited vs Vicky Aggarwal & Ors.) wherein the Delhi High Court had initiated a criminal contempt proceeding against the defendants for producing a fake IPAB order and placed the matter before the Chief Justice for reference to the appropriate division bench. Bringing the matter to a seeming end, a division bench comprising of Justice Suresh Kumar Kait and Justice Shalinder Kaur has now directed the Bar Council of India to take appropriate actions against the party’s advocate, if found guilty of “manufacturing the order” purported earlier to be that of IPAB.

Though the contempt proceedings were initiated against the defendants, the DB discharged them considering their unconditional apology stating that the contempt was not deliberate and it was because of the copy of the fake order provided to them by their advocate. In fact, in the apology, the defendant stated that they have lodged a complaint against their advocate before the Bar Council of India. The defendant explained that they had been engaging the services of the advocate’s firm since 2008 and in 2015 they were informed by the advocate that a petition has been filed before the IPAB. The defendant further submitted that over the course of time, against the 2015 matter, they had been making payments to the advocate and eventually in April 2016 the advocate handed them a copy of the order dated March 02, 2016, purported to be passed by the IPAB.

Though the defendant submitted that owing to their association with the advocate since 2008 they did not suspect them to be capable of this misdeed, cross-checking the veracity of the order when the matter first came to light (in 2022) would have been prudent. Oh but how could they have checked that, considering there is no official and openly accessible repository of the IPAB orders after the takedown of the Board’s website. I tried looking for this order in our openly accessible repository of IPAB orders but was not able to find a copy. Then I tried accessing the defunct IPAB website using the Wayback Machine where the list of orders for March, 2016 does not show any orders passed on March 02, 2016.  

This is not the first time that an IP law practitioner has had to face the music for their misconduct/ negligence. Earlier Prashant, Aparajita, Lokesh and I have separately written about instances where the courts have called out the patent agents for their actions. However, unlike in those cases, where there is no disciplinary mechanism against the misconduct of a patent agent, if found guilty of professional misconduct by the disciplinary committee, suitable actions can be taken under the Advocates Act. It has been previously enunciated in Smt. Lachi Tewari & Ors. v. Director of Land Records, and The Secretary, Department of Horticulture, Chandigarh v. Raghu Raj that a party cannot be held responsible for errors committed on behalf of their counsels and though the court has not expressly recognized this principle, the outcome seems to be accurate nonetheless. 

Another important issue highlighted in this controversy is the absence of a publically available official source wherefrom orders of the IPAB can be easily accessed. As discussed by Gaurangi in her post (linked above) earlier when the IPAB’s website was still functioning anyone could have accessed it for a copy of an order passed by the board (and could also have checked in case the order was fake). However, after the website’s takedown, such orders are available mostly on paid databases. With this controversy now laid to rest, hopefully, the concerned authority will understand the problem with scrapping a database of judicial orders overnight and will install some backup mechanisms to enable public access to these orders.

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• Source: https://spicyip.com/2023/11/spicyip-tidbit-advocate-faces-music-for-concocting-a-fake-ipab-order.html