TMI Blog2009 (6) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... nally at the admission stage. 2. The petitioner - MRC Logistics Private Limited was incorporated under the provisions of the Indian Companies Act, 1956, by the Registrar of Companies, Mumbai, who issued the Certificate of Incorporation No. 46309 MH 2006 PTC 161579, dated 3-5-2006. The Directors of this company were the partners of the registered partnership firm viz., Mumbai Road Carriers which was formed on 1-4-1998 and was engaged in the business of logistics and mainly, transportation. 3. The petitioner company made an application for registration of the trademark to the Registrar of Trade Mark, which is still pending with the competent authority. 4. Respondent No. 1 the Regional Director, Western Region, Ministry of Corporate Affairs, Mumbai, in exercise of his powers under section 22 of the Companies Act, issued a notice to the petitioner to show cause as to why the directions as mentioned in that section should not be issued, as the respondent No. 2 MRC Logistics (India) Private Limited, which was duly incorporated on 25-9-2002, had made an application to the Regional Director on 21-3-2007, complaining that the name of the petitioner company was identical to tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not arise and it was expected to consider the case on merits. Upon this discussion, the Regional Director issued the following directions : "10. Now, therefore, in exercise of power conferred on by clause ( b ) of sub-section (1) of section 22 of the Companies Act, 1956, read with Government of India, Ministry of Industry, Department of Company Affairs, Notification No. GSR 288 (E), dated 31-5-1991, I hereby direct M/s. MRC Logistics Pvt. Ltd., respondent company to change its name as per the procedure under the Companies Act, 1956, within 3 months from the date of this direction." The petitioner M/s. MRC Logistics Private Limited has now challenged this order on the above referred grounds. 8. Before we discuss the merits or otherwise of the above-referred contentions, it will be useful to reproduce section 22 of the Companies Act as follows : "22. Rectification of name of company. (1) If, through inadvertence or otherwise, a company on its first registration or on its registration by a new name, is registered by a name which, - ( i )in the opinion of the Central Government, is identical with, or too nearly resembles, the name by which a company in existence has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be dissected into two aspects. In terms of section 22(1)( i ) the Central Government has to form its opinion which could be suo motu and without any person invoking that authority of the Central Government. Under that provision the subsequently registered company having identical or nearly resembling name to the name of previously existing registered company may, by passing ordinary resolution and with the approval of the Central Government, can change its name or give new name in terms of section 22(1)( a ) of the Act. Where the Central Government has formed an opinion, it can issue directions in terms of section 22(1)( b ) within a period of 12 months to change the name of a subsequently registered company or by adopting a new name within three months from the date of direction. In this event, such a company shall have to carry out the directions issued by the Central Government, failing which such a company would invite penal consequences as contemplated under section 22(2) of the Act. But the jurisdiction to be exercised by the Central Government under section 22(1)( b ) of the Act has to be exercised within twelve months of first registration or registration by its new nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity of the Central Government has exercised powers definitely on the application filed by the respondent No. 2 company. The powers to be exercised by the Central Government in either of these two events have to be in conformity with the provisions of clause ( b ) of section 22 of the Act. The Government can issue a direction to the subsequently registered company within 12 months of its first registration or registration by a new name. Once that period lapses the Government looses its authority to issue such a direction. The intention of the Legislature is to restrict or control the powers of the Central Government and not to provide limitation for filing an application. It is an embargo on exercise of the powers and not remedy as such. The powers under section 22 are discretionary powers, which, as already noticed, can be exercised suo motu or on an application filed by an aggrieved person. This view was also taken by the Calcutta High Court in Sen Pandit Electronics (P.) Ltd. s case ( supra ). At the same time, section 22 does not in any way interferes or bars the remedies available under different Acts including initiation of any action or passing off action under the Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of the company which is much narrower jurisdiction than the jurisdiction vested in the civil court in terms of the provisions of the Specific Relief Act, 1963 and Order 39 of the Code of Civil Procedure. It can also be usefully noticed that such a provision is not unknown provision of law prevalent in different enactments in force. For instance, the provisions of the Industrial Disputes Act, 1947 are a clear example of this kind. Under section 25-O of the Industrial Disputes Act, 1947 the Government and even the competent authority lose their jurisdiction when the period specified in the said provision lapses. The Full Bench of this Court in the case of Britannia Industries Ltd. v. Maharashtra General Kamgar Union (Writ Petition No. 2659 of 2005) decided on 16-4-2009 observed as under : "37. The decision of the State Government to close down the industrial unit is revisable only within one year from the date of the decision after which the Government loses jurisdiction to permit invocation of remedy as contemplated under section 25-O(5) of the Act. Section 25-O(5) being a Code in itself is further controlled strictly by limitations and the period specified under the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be disposed of, but the provision that order on an application for closure would remain in force for one year and in the absence of any embargoed to make fresh application for such permission after expiry of one year even if a review application remains pending, makes it abundantly clear that in the scheme of section 25( O ), the review application is to be made before expiry of the said time frame of one year and such application is to be disposed of within such time frame otherwise such review application will become infructuous. The argument that a party should not be made to suffer simply on account of failure on the part of a statutory authority to dispose of review application within a time frame and thereby rendering it infructuous, is not tenable because after expiry of the said time frame of one year, the party aggrieved has a right to make a fresh application by incorporating all the material factors germane for consideration of its application for permission to close, including the factors indicated in review application. Neither the general principle of retaining jurisdiction to dispose of review application validly made nor the principle that an authority if clothed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
