TaxTMI 
TaxTMI 
2009 (6) TMI 579
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....dent 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 that of its company which was registered with the Registrar of Companies much prior in time and that direction be issued to the petitioner company to change its name in accordance with law. 5. The then Regional Director, Shri V.S. Rao passed an order dated 29-10-2007. It was noticed that the application for registration of the trademark of both the companies i.e., the petitioner and the respondent were pending with the Registrar of Trade Mark. It was also noticed that the petitioner company had been registered on 3-5-2006 and the respondent No. 2 - complainant/company moved the application on 21-3-2007. The report from the office of Registrar was received on 20-6-2007 and t....
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....rred 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 been previously registered, whether under this Act or any previous companies law, the first-mentioned company, or (ii )on an application by a registered proprietor of a trademark, is in the opinion of the Central Government identical with, or too nearly resembles, a registered trademark of such proprietor under the Trade Marks Act, 1999, such company - (a )may, by ordinary resolution and with the previous approval of the Central Government signified in writing, change its name or new name; and (b )shall, if the Central Government so directs within twelve months of its first registration or registration by its new name, as the case may be, or within twelve months of the commenceme....
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....ered 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 name of such company or twelve months from the date of commencement of the Act, whichever is later. The Act came into force on 15-9-2003. 11. The other aspect is the right given to a party (previously registered existing company), which is a registered proprietor of a trade mark, to make an application to the Central Government which thereupon will consider such application and dispose of the same in accordance with law. If in the opinion of the Central Government, the names are identical or nearly resembles with the registered trade mark under the Trade Marks Act, 1999, such a company will and can take recourse to the provisions of section 22(1) and if the direction is issued by the Central Government....
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.... 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 Trade and Merchandise Act. The powers are to be exercised in accordance with the principles of natural justice and as per the procedure stated under the Act. 13. The period of 12 months is, therefore, essence of invocation of powers in terms of section 22 vested in the appropriate Government. As far as section 22(1)(i)(2) is concerned, said provisions are not attracted in the facts of the present case. 14. The learned Counsel appearing for the petitioner, while relying on the judgment of the Calcutta High Court in Sen & Pandit Electronics (P.) Ltd.'s case (supra) argued that the limitation stated in section 22 on the powers on the exercise by the Central Government is not absolute bar. We are not able to appreciate t....
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.... 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 Act. Reference in this regard can also be made to a judgment of the Supreme Court in Vazir Glass Works Ltd. v. Maharashtra General Kamgar Union AIR 1996 SC 1282. . . ." 16. In Vazir Glass Works Ltd. v. Maharashtra General Kamgar Union AIR 1996 SC 1282, the Supreme Court held as under :- "30. Since the decision made on an application for permission for closure is to remain operative only for a year, in our view, it will be only proper to hold that an order by way of review either on the aggrieved party's application or on own motion of the State Government, must be made within the said period of one year. Otherwise, the right to make fresh application for permission to close after expiry of one year from the date of rejection of permi....
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....ot 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 with the power of review will not become functions officio after expiry of the time frame of one year but it will retain its authority to dispose of the pending review application will arise in the context of the scheme of section 25(O). 32. ****** 33. In the aforesaid facts, the impugned decision to the effect that the State Government would cease to have jurisdiction to review its order on the application for closure of an industrial unit after expiry of one year from the date of rejection of the application for permission to close, is correct." (p. 1289) 17. Thus, the Legislature in its wisdom has enacted similar provision under different laws where an authority, Tribunal or the Forum loses its jurisdiction to pass an order after laps....