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2010 (2) TMI 1283 - HC - Companies LawUse of Partnership firm name after discontinuing as partners - writ of certiorarified mandamus to quash the certificate of incorporation issued by the third respondent for registration of similar name -Memorandum of agreement for non-compete and usage of trade mark registration was entered into between the petitioner and his wife as parties of the first part, the partnership firm as party of the second part and the fourth respondent as party of the third party - claim of the petitioner is that the fourth respondent has no right to use the name of "Accura Weldrods" which according to the petitioner is the trade mark of the partnership firm and an application of the registration of the mark is pending before the trademark registry - Correctness of the impugned certificate of incorporation on the ground that the official respondents have a legal obligation to hold that the company cannot be registered in the said name, as within the meaning of Section 20 of the Companies Act, the name too nearly resembles the trademark of the writ petitioner that on coming to know about the incorporation of the 7th respondent company, the petitioner had and issued a legal notice to the second respondent, the firm represented by the petitioner as Managing Partner issued a legal notice to effect the change of name of the company - ensure that the change of name is not registered with an undesirable name - whether third respondent ought not to have decided the application of change of name without hearing the aggrieved parties? - HELD THAT:- Application for change of name has to be considered in the light of Section 20 and the procedure to be adopted is given in the guidelines issued by the department of company affairs, which has spelt out detailed guidelines to be followed. This Court has come to a conclusion that there has been violation of principles of natural justice and the decision making process which ultimately culminated in the impugned certificate of incorporation is erroneous and the proper and necessary parties were not afforded an opportunity by the third respondent and that there is no record to show that while effecting the change of name and granting approval u/s 20 of the Act that the third respondent had considered the aspects as to whether the change of name is "undesirable" within the scope of Section 20(2) (ii) of the Companies Act. In view of the same, I am inclined to interfere in the impugned certificate of incorporation. For reasons recorded, the petitioner is entitled to succeed and accordingly, the writ petition is allowed, the impugned certificate of incorporation is set aside and the matter is remanded back for fresh consideration of the third respondent on merits and in accordance with law, after issuing notice to the partners of the firm M/s.Accura Weldrods, the seventh respondent as well as the respondents four and five, Directors of the seventh respondent company, which was formally incorporated under the name and style of the sixth respondent company. The third respondent shall issue notice to the parties above mentioned within a period of four weeks from the date of receipt of a copy of this order and thereafter consider the objections placed by all the parties and decide the application for change of name submitted by the erstwhile sixth respondent company u/s 21 and in doing so the third respondent shall also decide as to whether the proposed change of name is not undesirable u/s 20(2) (ii) of the Companies Act 1956 and pass orders on merits and in accordance with law within a period of four weeks from the date of the objections submitted by the parties.
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