TMI Blog2017 (8) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... isting company. Respondent no.2 and its directors are also directed to ensure that respondent no.2 changes its name as indicated above. - W.P.(C) 5289/2014 And CM No. 10518/2014 - - - Dated:- 7-7-2017 - MR. VIBHU BAKHRU, J. For The Petitioner : Mr Rajeev Virmani, Senior Advocate with Mr Darpan Wadhwa, Mr Ajay Bhargava, Mr Ankur Sangal and Ms Sucheta Roy, Advocates For The Respondents : Mr Rajesh Gogna, CGSC ORDER VIBHU BAKHRU, J 1. Mondelez Foods Private Limited (hereafter the petitioner ) has filed the present petition under Article 226 of the Constitution of India, inter alia , impugning an order dated 20.06.2014 passed by respondent no.1 (hereafter the RD ), rejecting the representation filed by the petitioner under Section 22 of the Companies Act, 1956 (hereafter the Act ). The petitioner is essentially aggrieved by respondent no.3, that is, Registrar of Companies (ROC), accepting the change in the corporate name of respondent no.2 from Nonstop Logistics India Private Limited to Mondelez India Private Limited and registering respondent no.2 under that name. 2. Aggrieved by the aforesaid action, the petitioner had made a representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alt with by the petitioner. The documents filed by respondent no.2 with the ROC indicate that an extraordinary general body meeting of the said respondent was held on 03.09.2012 for change of corporate name and the only reason for changing the name was that the directors of respondent no.2 considered the new name to be lucky for business transactions . The ROC confirmed the availability of the name Mondelez India Private Limited and on an application made by respondent no.2, the ROC issued a fresh certificate of incorporation on 11.09.2012 under the changed name - Mondelez India Private Limited . 3.4 The petitioner has alleged that the change of name of respondent no.2 is patently dishonest and was adopted only with a view to negotiate a settlement in exchange for dropping the word Mondelez . 3.5 In view of the above, the petitioner called upon respondent no.2 to rectify its corporate name and also caused legal notices dated 25.02.2013 and 26.03.2013 to be served on respondent no.2. Thereafter, on 02.05.2013, the petitioner filed a rectification petition before the RD and sought directions from the Central Government (the RD) in exercise of powers under Section 22(1)( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to or resembles the name of a previously registered company either suo motu or on an application by a registered proprietor of a trade mark. 7. In the present case, the RD had declined to issue any such directions principally for the reasons (i) that the petitioner was not the owner of the trade mark; and (ii) that the period of 12 months from the registration of respondent no.2 under the changed name had elapsed. 8. Mr Virmani, learned Senior Counsel appearing for the petitioner contended that none of the aforesaid two reasons were sustainable. He stated that although the petitioner was not the owner of the trade mark Mondelez but had due authority to use the same. He contended that the expression registered proprietor of a trade mark as used in Section 22(1)(ii) of the Act would include a person authorized by the registered proprietor of the trade mark. Secondly, he contended that the petitioner had made a representation within the period of twelve months and therefore, it could not be prejudiced by any delay on the part of RD in issuing the directions as sought for. He also referred to the proviso to Section 22(1) of the Act, which proscribed the making of an appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be, or within twelve months of the commencement of this Act, whichever is later, 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. 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. 10. In the given facts, it is undisputable that the changed name of respondent no. 2 is undesireable in the context of Section 20 of the Act. 11. The only question that remains to be adressed is whether the RD (as a delegatee of the powers of the Central Government) could direct change in name of respondent no.2 after the period of twelve months. Section 22(1)(ii)(b) of the Act obliges a company to change its name, if so directed by the Central Government within a period of twelve months from the date of first registration or the date of registration of the change in name. Since, the RD failed to issue any such direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y resembles the name by which a company in existence had been previously registered, whether under this Act or any previous company law, it may direct the company to change its name and the company shall change its name or new name, as the case may be, within a period of three months from the issue of such direction, after adopting an ordinary resolution for the purpose; ( b) on an application by a registered proprietor of a trade mark that the name is identical with or too nearly resembles a registered trade mark of such proprietor under the Trade Marks Act, 1999 (47 of 1999), made to the Central Government within three years of incorporation or registration or change of name of the company, whether under this Act or any previous company law, in the opinion of the Central Government, is identical with or too nearly resembles an existing trade mark, it may direct the company to change its name and the company shall change its name or new name, as the case may be, within a period of six months from the issue of such direction, after adopting an ordinary resolution for the purpose. 13. Since, it is apparent on the facts of the present case that the name of respondent no.2, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
