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2010 (4) TMI 786

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..... azza Glass (P.) Ltd. The only word common in both these names is Bisazza. It has come on record that the word ‘Bisazza’ indicates the surname in Italy. The surname remains a surname whether in Italy or in India or anywhere else. This word is not coined by the petitioner. No one can claim any monopoly over this word. - writ petition dismissed. - 4876 OF 2003 - - - Dated:- 30-4-2010 - K.A. PUJ, J. S.N. Soparkar and Amar N. Bhatt for the Petitioner. Ashok L. Shah and Sunil C. Patel for the Respondent. JUDGMENT 1. The petitioner has filed this petition under article 226 of the Constitution of India challenging the order dated 18-12-2002, passed by the Regional Director (Western Region), Mumbai, rejecting the petitioner s application seeking direction under section 22 of the Companies Act, 1956, for change of name of another company, i.e., M/s. Pino Bisazza Glass (P.) Ltd., as the name of respondent No. 1 company was considered to be nearly resembling with the name of the petitioner-company. 2. This court has issued notice dated 21-4-2003. Thereafter, on 28-4-2004, the petition was admitted by this court and rule was issued. Affidavit-in-reply is filed on behalf of .....

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..... he said order of the then Regional Director, Western Region, respondent No. 1 filed Special Civil Application No. 13009 of 2000 before this court which was allowed by this court vide its order dated 1-4-2002, only on the ground that the same did not record reasons for passing final order with further clarification that it would be open to respondent No. 1 to move respondent No. 2 for reconsidering the matter afresh after giving opportunity of hearing to the petitioner. Pursuant to this direction, respondent No. 2 passed an order on 18-12-2002, rejecting the petitioner s application for cancellation of the name of respondent No. 1 company as Pino Bisazza Glass (P.) Ltd. 6. It is this order which is under challenge in the present petition. 7. Mr. S.N. Soparkar, learned senior advocate appearing with Mr. Amar N. Bhatt, learned advocate for the petitioner has submitted that there is no justification on the part of respondent No. 2 in holding that there is no too near resemblance between the names of the petitioner and respondent No. 1. In coming to this conclusion, respondent No. 2 failed to consider various guidelines and circulars issued by the Department of Company Affairs, Gove .....

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..... petitioner has been permitted to use by virtue of technical collaboration with Bisazza SPA, Italy. 10. Mr. Soparkar has submitted that respondent No. 2 has committed a grave error of law in arriving at the conclusion that only the registered proprietor of the trade mark can seek directions under section 22(ii) of the Companies Act, 1956 and, therefore, the petitioner cannot seek the direction under section 22(ii) of the Companies Act, 1956. He has further submitted that allowing respondent No. 1 to continue its present name would create misunderstanding in the trade and market as well as in the minds of the customers and, therefore, it is not desirable to allow respondent No. 1 to continue its name by registering Pino Bisazza Glass (P.) Ltd. 11. In support of his submission, Mr. Soparkar has relied upon the decision of this court in the case of P.M. Diesels Ltd. v. Union of India [Special Civil Application No. 6961 of 1992, dated 15-12-2005], wherein the petition filed by one M/s. P. Diesels Ltd., was allowed and the communication/decision of the Registrar of Companies, Gujarat, impugned therein, granting registration to respondent No. 4 with effect from 29-6-1989, in the name .....

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..... the respondent-company too nearly resembles the name of the petitioner-company. He has further submitted that the name of the respondent-company does not resemble much less too nearly resembles the name of the petitioner-company. He has further submitted that the word "Bisazza" is not coined by the petitioner. It is settled law that nobody can own a proprietary right in a common name or common surname, particularly, as against a person having the same name or surname. In the name of the respondent-company Pino Bisazza is the name of the chief promoter of the respondent-company. Pino being his first name and Bisazza being his surname and hence, there is no provision of any law under which he can be prevented from using his name and surname Pino Bisazza for his business. 13. Mr. Shah has further submitted that when respondent No. 1 company made an application in Form No. 1A to the Registrar of Companies, Ahmedabad, for availability of name, a letter was addressed to the Registrar of Companies along with the said Form and it was clearly pointed out in the said letter as the words Pino Bisazza mentioned in the proposed name applied for, represented the name of the person who will b .....

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..... The respondent-company s name includes an additional word glass which is not found in the name of the petitioner-company. Except the word Bisazza which is a very common surname in Italy, there is no single word common between the names of the petitioner and the respondent-company. The name of the respondent-company does not, thus, resemble the name of the petitioner. Moreover, what section 20 requires for a name to be undesirable is not that a name shall not resemble the name of the earlier registered company. What it requires is that it shall not too nearly resemble the name of earlier registered company. Merely because there is one single word common in the names of two companies particularly when the names contain several more distinctive distinguishing words, they cannot be said to be resembling, much less, too nearly resembling each other. Mr. Shah has further derived supports for his submission from the various illustrations given in the guidelines. In all the said illustrations, there are at least two common words as distinguished in the two respectively compared names. The two common words in the pairs of names are highlighted in bold underlined words in the table give .....

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..... ames of the petitioner and the respondent-company and there is no dishonest or mala fide intention on the part of the respondent-company in using its existing name. No confusion or misunderstanding is likely to be caused amongst the trade circles or common man dealing with the respective companies. 18. Apart from the submissions on merits Mr. Shah has raised one more interesting issue for court s consideration. He has further submitted that respondent No. 2 has erred when he failed to hold that no order can be passed under section 22 of the Companies Act, 1956, after the period of twelve months from the date of registration of the new company. The Central Government cannot exercise the power under section 22 of the Companies Act; after the period of twelve months from the date of registration of the respondent-company. There is no provisions anywhere for extension of statutory period of twelve months and hence the court cannot extend the same under its writ jurisdiction. Respondent No. 2 should not have passed the impugned order even as per the direction of the court. The court cannot issue such directions under its writ jurisdiction which are contrary to the provisions of law. T .....

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..... the Central Government to direct the later company to change its name. When the limitation prescribed by the statute had expired, it would not be open for the court to extend the same by exercising powers under article 226 of the Constitution of India. The court cannot compel the registering authority to pass orders in violation of statutory provisions which have the effect of extending the period of limitation under the Act. In the case of Hope Textiles Ltd. v. Union of India [1995] Supp. (3) SCC 1993, the Apex Court had held that a writ of mandamus can be issued to a statutory authority to compel it to perform its statutory obligation. It cannot issue to compel him to pass an order in violation of a statutory provision. The Income-tax Officer had no power to make a reassessment beyond the period prescribed by sub-section (2), unless the case fell under any of the other sub-sections under section 153 or other provision extending the said period of limitation. 20. Mr. Shah has further relied upon the decision of the Bombay High Court in the case of MRC Logistics (P.) Ltd. v. Regional Director [2009] 151 Comp. Cas. 4664 wherein it is held that it is well-settled principle that un .....

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..... to law. He has further submitted that when this court has issued the direction while disposing of the earlier petition filed by respondent No. 1 company the period of limitation would not apply. The Regional Director has no authority to pass the order contrary to the direction issued by this court. The earlier order passed by the Regional Director was quashed and set aside with further clarification that it would be open to respondent No. 1 to move respondent No. 2 for reconsideration of the matter afresh after giving opportunity of hearing to the petitioner and it will also be open for respondent No. 2 to record reasons in passing the order and then pass final order under section 22 of the Companies Act, 1956. He has further submitted that there is specific direction to pass an order under section 22 of the Companies Act. This order has become final and it has not been challenged by respondent No. 1 and hence, it is binding between the parties. In support of his submission, Mr. Soparkar has relied upon the decision of the Division Bench of this court in the case of Ashokbhai Vallabhbhai v. Union of India decided on July 30, 2009 (sic), wherein it is held that the period of limita .....

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..... the ground of limitation, considering the provision contained in section 22 of the Companies Act, 1956. 25. The court has considered the detailed submissions made by the parties. There are two companies before the court one is Bisazza India Ltd., the petitioner herein and other one is M/s. Pino Bisazza Glass (P.) Ltd., respondent No. 1 herein. The court has to consider as to whether there is any similarity in the name of these two companies or whether the name of respondent No. 1 company is too nearly resembling with the name of the petitioner-company. On the face of it, there does not seem to be any similarity between these two names. The only question, therefore, remains is to decide as to whether the name of one company appears to be too nearly resembling with the name of another company. In the name of the petitioner-company, there are three words, namely, Bisazza India Ltd., whereas in the name of respondent No. 1 company, there are four words, namely, Pino Bisazza Glass (P.) Ltd. The only word common in both these names is Bisazza. It has come on record that the word Bisazza indicates the surname in Italy. The surname remains a surname whether in Italy or in India or anyw .....

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..... ppropriate action by invoking the provision of section 20 of the Act. If the decision of the Regional Director is challenged by the aggrieved party, the court will decide this issue within the parameters of sections 20 and 22 of the Companies Act, 1956. Taking any view of the matter, it cannot be said that the name of respondent No. 1 company is too nearly resembling with the name of the petitioner-company. The challenge to the order of the Regional Director on this ground, therefore, fails. 26. The judgment of this court in the case of P.M. Diesels Ltd. (supra), is of no relevance to the facts of the present case. In that case, the court has considered the grant of registration by the Registrar of Companies without considering the objections submitted by the petitioner and/or without giving any opportunity to the petitioner. The court, therefore, on that ground alone quashed and set aside the order passed by the Registrar of Companies (Gujarat) registering the company under the name and style of S. Marshal Pumps (P.) Ltd. While quashing the said order, the court has directed that it would be open for the Registrar of Companies (Gujarat) to take an appropriate decision registerin .....

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..... the matter was remitted back for consideration afresh. The Bombay High Court has also granted three months time to decide the matter in accordance with law. However, when a fresh order was passed, the statutory time-limit prescribed under section 22(1) of the Companies Act had expired and when an aggrieved party challenged the decision of the Regional Director before the Bombay High Court, the High Court has taken the view that once the period lapses the Government loses its authority to issue such direction. The Bombay High Court has further taken the view that the period of twelve months is, therefore, essence of invocation of powers in terms of section 22 vested in the appropriate Government. Prima facie, this view seems to be the correct view. However, it is difficult for this court to subscribe the said view in view of the judgment of the Division Bench of this court rendered in [Special Civil Application No. 5751 of 2008, decided on 30-7-2009] (wherein Coram : Mr. K.A. Puj, J. was a member) wherein it is held that the period of limitation is a defence available to the respondent and by not challenging the said decision of Co-ordinated Bench, the respondent can be said to hav .....

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