TMI Blog2023 (3) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings lapse. There was no possibility for the dead proceedings to be revived thereafter merely because the amended Section gave vested authority in the power to issue notice. Thus, and since the right to issue notice under the earlier Act had come to an end before the new Act came into force, the notice was struck down - In the present case, it is not merely a provision that has been amended but an entirely new enactment, the 2013 Act that has replaced the 1956 Companies Act. There is simply no avenue for the timelines under the old Act to enure to the benefit of R2. Thus, the limitation under Section 22 of the 1956 Act had long expired with the repeal of that Act and there is no question of any person being entitled to the benefit of the same thereafter. This argument is rejected. Thus, the jurisdictional fact of bar of limitation is clearly attractive/established. The Court has observed that a Writ of Prohibition is not normally issued for a mere error of law unless the error makes the proceedings fall outside the jurisdiction of the authority. Writ of Prohibition as sought for is issued and this Writ Petition is allowed. - W.P.No.5271 of 2017 And WMP.Nos.5586 & 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is yet pending. 7. While this is so, the petitioner received, on 25.11.2016, a notice from R1 in regard to the application filed by R2 seeking rectification of the name of the petitioner. The pleadings in this Writ Petition touch upon the disputes qua the parties concerning Intellectual Property Rights (IPR), for the reason that at the time of institution of the Writ Petition on 28.02.2017, matters were still at large before the Civil Court. 8. However, today Mr.Athiban Vijay, learned counsel on behalf of Mr.K.Gowtham Kumar, learned counsel for R2, confirms that, no dispute is now raised qua the issue of IPR as those issues are pending before the civil courts. His statement is recorded and the arguments thus proceed on the other grounds. 9. In the counter filed on 24.11.2022, R2 has made a clear distinction between the proceedings pending before the Civil Court and the proceedings at issue in this Writ Petition. This distinction is well founded, as nowhere in the course of this order have I made or intended to make any observations that would touch upon the disposal of the Civil Suit between the parties involving their intellectual property rights. 10. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce that are within the special knowledge and custody of the applicant which he had deliberately chosen to withhold in the present proceedings. 14. Both Mr.Venkataswamy Babu, learned Senior Panel Counsel for R1 and Mr.Athiban would submit that this Writ Petition must not be entertained, seeing as the petitioner has, admittedly, participated in the proceedings before R1. There is really no difficulty on this score, since, and as the records indicate, it has been the consistent request of the petitioner that the authority has no jurisdiction in the matter. 15. This is specifically for the reason that R1 has been insistent upon hearing the matter in entirety while the petitioner would argue that the question of maintainability must be decided at the threshold, since the continuance or otherwise of the matter would be dependent on such decision. 16. In the considered view of this Court, it would have been in the fitness of things for this issue to have been decided first since it goes to the root of the matter and impinges upon the fundamental aspect of assumption of jurisdiction by R1. I thus, see no road block to entertain this Writ Petition merely on this account. 17. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression 'incorporation or registration or change of name of the company' in Section 16(1)(b) be understood and interpreted such that the limitation stipulated there, of 3 years, commences from date of knowledge of incorporation of the company. 23. I would straight away reject this argument, seeing as it tantamounts to re-writing the statutory provision. Nowhere does Section 16(1)(b) envisage or provide for such a situation and, on the other hand, the provision is categoric that the period of 3 years shall run from date of incorporation. 24. In this context, useful reference may be made to the proviso to Section 22(1)(b) of the Companies Act, 1956 (in short '1956 Act'). That provision is in pari materia with the provisions of Section 16 of the 2013 Act also dealing with rectification in the name of a company, reading thus: 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).............. (ii) on an application by a registered proprietor of a trade mark, is in the opinion of the Central Government iden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 to 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. 27. Section 16 provides for rectification in two situations, first, on an application by the Central Government through the ROC and second on an application by a registered proprietor. The limitation of 3 years from date of incorporation/registration/change of name of the company, is imposed only in the latter instance. 28. R2 would argue that it had a duty to bring to the attention of the ROC the similarity in the name of the company as the very purpose of Section 16 is to avoid such similarity that would result in public confusion. Stating thus, there is an attempt to bring the application within the ambit of Section 16(1)(a) where there is no limitation provided. 29. Per contra, the petitioner retorts that when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner company. 34. This argument is rejected as, with the repeal of the 1956 Act and the coming into force of the 2013 Act on 29.08.2013, the 1956 Act and the provisions thereunder have no force except to the extent saved under Section 465 of the 2013 Act. 35. Three Judges of the Hon ble Supreme Court in the case S.S.Gadgil Vs Lal and Co. (53 ITR 231) considered a challenge to proceedings for re-assessment under Section 34 of the Income Tax Act, 1922 on the ground that the notice issued was barred by limitation under Section 18 of Finance Act 1956. Section 34 was amended and one of the provisos substituted to state that no notice may be issued thereunder after the expiry of 2 years from the end of the assessment year. 36. The Bench noted that Section 18 of Finance Act, 1956 had not been given retrospective operation. Thus the question that arose was whether notice of assessment may be issued under the amended provision when the period prescribed for such notice had expired before the amended Act came into force. 37. The Bench held that such an event was not possible, in view of the settled position that when a Statute mentions a date on which a provision shall come into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested right claiming that he should be governed by the old provision pertaining to period of limitation. Procedural law is retrospective meaning thereby that it will apply even to acts or transactions under the repealed Act. 60........... A perusal of this judgment would show that limitation, being procedural in nature, would ordinarily be applied retrospectively, save and except that the new law of limitation cannot revive a dead remedy. This was said in the context of a new law of limitation providing for a longer period of limitation than what was provided earlier. In the present case, these observations are apposite in view of what has been held by the Appellate Tribunal. An application that is filed in 2016 or 2017, after the Code has come into force, cannot suddenly revive a debt which is no longer due as it is time-barred. 43. In light of the discussion as above, the limitation under Section 22 of the 1956 Act had long expired with the repeal of that Act and there is no question of any person being entitled to the benefit of the same thereafter. This argument is rejected. 44. The next argument relates to certain alleged deficiencies in, and nondisclosure by the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom exercising a jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine courts or tribunals of inferior or limited jurisdiction within their bounds. It is well-settled that the writ of prohibition lies not only for excess of jurisdiction or for absence of jurisdiction but the writ also lies in a case of departure from the rules of natural justice (See Halsbury's Laws of England, 3rd Edn., Vol. II, p. 114). It was held for instance by the Court of Appeal in The King v. North(1) that as the order of the judge of the consistory court of July 24, 1925 was made without giving the vicar an opportunity of being: heard in his defence, the order was made in violation of the principles of natural justice and was therefore an order made without jurisdiction and the writ of prohibition ought to issue. But the writ does not lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings. It is also well-established that a writ of prohibition cannot be issued to a court or an inferior tribunal for an error of law unless the er ..... X X X X Extracts X X X X X X X X Extracts X X X X
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