TMI Blog2013 (4) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... or otherwise is undesirable. Suffice it to state that merely because the name of a company subsequently registered is identical with or too nearly resembles the name of a company which has already been registered, albeit, through inadvertence or otherwise, it does not follow that an order for rectification is bound to be passed. Matter remanded back to ROC for fresh order after considering the relevant facts in an application under section 22. - Writ Petition No. 2519 of 2012 - - - Dated:- 5-4-2013 - S. J. Vazifdar And Mridula Bhatkar, JJ. For the Petitioners : Mr. Sanjay Jain with Mr. B.N. Poojari i/b M/s. Asian Patent Law. For the Respondent : Mr. A. J. Rana, senior counsel with Mr. D. P. Singh. Mr. Shyam Mehta, senior counsel with Ms. Shilpaja V. Kondalkar JUDGMENT 1. Rule. With the consent of the parties, Rule is made returnable forthwith and the Writ Petition is heard finally. 2. The petitioners have challenged an order dated 27th July, 2012, passed by the respondent No. 2 - The Regional Director - under section 22 of the Companies Act, 1956, directing the petitioner No.1 to change its name within three months by deleting the words "VOV COSMETI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication under section 22 of the said Act to rectify the first petitioner's name, so as not to resemble its name and not to use the word VOV Cosmetic in the rectified name. The respondent No.4 stated that respondent No.5 Dharamshi Manji Patel who was one of its promoters, had applied for the trademark VOV in the year 2005. Subsequently, respondent No.4 applied for other marks, a prominent feature whereof was the mark VOV . The same are pending registration. 7. The names of petitioner No.1 and respondent No.4 are not merely deceptively similar, but are virtually identical. 8. Upon receipt of the fourth respondent's application, petitioner No.1 was issued a notice dated 14th May, 2012, calling upon it to show cause why it ought not be directed under section 22 of the Act to change its name. The Registrar of Companies was also directed to furnish a report in the matter. Petitioner No.1 by its letter dated 24th May, 2012, replied to the show cause notice and on 24th July, 2012, filed a formal reply to the application. The petitioners admitted that their applications for registration of their trademarks, which included as a dominant part thereof, the word VOV , were pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government signified in writing, change its name or new name within a period of three months from the date of the direction or such longer period as the Central Government may think fit to allow : Provided that no application under clause (ii) made by a registered proprietor of a trade mark after five years of coming to notice of registration of the company shall be considered by the Central Government. (2) If a company makes default in complying with any direction given under clause (b) of sub-section (1), the company, and every officer who is in default, shall be punishable with fine which may extend to one thousand rupees for every day, during which the default continues; 11. By the impugned order, respondent No.2 the Regional Director - observed that petitioner No.1 had obtained permission to be incorporated in it's present name on the basis of an incorrect statement in it's Chartered Accountant's certificate and in the application signed by its promoter petitioner No.3, that petitioner No.3, who was the promoter of petitioner No.1, was the owner of the registered trademark VOV since December, 2002. That this was an incorrect statement is admitted before us. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertence or otherwise, a company is registered by a name which is identical with or too nearly resembles the name by which a company in existence has been previously registered, the Central Government is bound to direct such subsequently registered company to change its name in the manner provided in section 22(1). They contended that in such a case the Central Government has no option but to order the name to be changed. We are unable to agree. 14. Firstly, section 20 does not bar the Central Government from registering by a name which is identical with or too nearly resembles the name by which a company in existence has been previously registered. In other words, section 20 does not provide that a name by which a company desires to be registered is not undesirable merely because it is identical with or too nearly resembles the name by which a company in existence has been previously registered. Whether such name is undesirable or not would depend on the facts and circumstances of the case. This is clear from sub-section (2) of section 20 which provides that such a name may be deemed to be undesirable by the Central Government within the meaning of sub- section (1). It is merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st-mentioned company, . (ii) ........................ (a) ........................ (b) shall, if the Central Government so directs within twelve months of its first registration ..........................., by ordinary resolution and with the previous approval of the Central Government signified in writing, change its name or new name within a period of three months from the date of the direction or such longer period as the Central Government may think fit to allow : Thus, even assuming that the subsequent company is, through inadvertence or otherwise, registered by a name which is identical with or to nearly resembles a name by which a company in existence has been previously registered, it does not follow as a matter of course that it should be directed by the Central Government to change it's name. This is clear from the use of the words if the Central Government so directs in section 22(1)(b). The word if indicates that it does not follow as a rule that merely because a company is, through inadvertence or otherwise, registered by a name which is identical with or to nearly resembles the name by which a company in existence has been previously registered, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the name of petitioner No.1 is almost identical to the name of respondent No.4 which was registered earlier. It was not even based on the incorrect statement made in Form 1 by petitioner No.3 the promoter of petitioner No.1 and the Chartered Accountant of petitioner No.1. This is clear from the order which stated that, that was a separate matter which was not dealt with in the order. It could certainly be a relevant factor, but it was not made the basis of the order. 21. In an application for rectification of a name under section 22, it is necessary for the Regional Director to consider various aspects. It is neither possible nor desirable to exhaustively enumerate them. Suffice it to state that merely because the name of a company subsequently registered is identical with or too nearly resembles the name of a company which has already been registered, albeit, through inadvertence or otherwise, it does not follow that an order for rectification is bound to be passed. 22. The impugned order is, therefore, liable to be quashed and set aside only on this ground. The Registrar of Companies shall, after affording the parties an opportunity of being heard, pass a fresh orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
