TaxTMI 
TaxTMI 
2023 (3) TMI 838
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....larity in the name of the petitioner to the registered name/marks claimed as owned by R2. 3. The facts, as narrated by Mr.Satish Parasaran, learned Senior Counsel appearing for Mr.R.Parthasarathy, learned counsel on record for the petitioner, are as follows. The Managing Directors of the petitioner and second respondent company, are brothers. The name 'Sri Krishna' had been identified and adopted for use in the business by their father Late N.K.Mahadeva Iyer in 1948 and thereafter used consensually by both brothers. 4. While this is so and the common understanding was that both brothers had equal claim to the name, a dispute was raised somewhere in September, 2015 by the MD of R2, seeking exclusive claim to the same. 5. R2 instituted a Suit, i.e., O.S.No.425 of 2016, on the file of the District Court, Coimbatore seeking an injunction as against the petitioner for use of the name and mark 'Sri Krishna'. An order had been passed on 05.06.2017 in I.A.Nos.886, 887 and 888 of 2016 dismissing the interim applications with costs. 6. As against that order, C.M.A.Nos.2266 to 2268 of 2017 had come to be filed before this Court and by order dated 18.09.2017 this Court dismissed the appeal....
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....ed to file written submissions. Such submissions have been filed. 12. It is at that stage that the petitioner has approached this Court reiterating the preliminary objection to assumption of jurisdiction by R1 in the matter. Though the very same submission has been advanced before R1 vide letter dated 28.02.2017, the petitioner apprehends that R1 might not afford a fair or proper hearing in that regard. 13. The relevant portion of letter dated 28.02.2017 reads as follows: ..... 3. Notwithstanding such clear position of law and the total lack of jurisdiction of this authority, the application has not only been entertained, but is being proceeded with in undue haste and with aspersions cast on the respondent of acts of fraud and misrepresentation. It is respectfully submitted that these are disputes which are best left for adjudication by the civil court in the pending proceedings in O.S.No.425 on the file of the District Judge, Coimbatore. 4. Without prejudice to the above objections as to the very jurisdiction of this authority to proceed with the matter, it is further submitted that, should the ROC still be inclined to proceed with this application, as set out consistently....
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....on 06.08.2009 and this admitted position emanates even from the application filed by R2, seeking amendment. The application dated 28.10.2016, in paragraph 2 under the title 'our complaint' states as follows: We investigated further and it has now come to our knowledge that a company by the name SRI KRISHNA SWEETS AND FOOD PRODUCTS (CHENNAI) PRIVATE LIMITED has been incorporated in Chennai, Tamilnadu on 6th August 2009 by the Registrar of Companies, Tamilnadu, Chennai. The Corporate Identity Number of the said company is U15400TN2009PTC072500 and its registered office is situated at No.5, Singaravelu Street, Pondy Bazaar, T.Nagar, Chennai- 600017. 20. The claim of R2 is that name of the petitioner closely resembles the name of R2 company necessitating amendment. The application has been filed in October, 2016 and is thus time barred in terms of the applicable provisions under the 2016 Act. 21. The defence of R2 is that it came to be aware of the existence of the petitioner company only in 2015 when it had approached the Registrar of Companies (in short 'ROC') for change of the name of a subsidiary company, i.e.,N.K.M. Enterprises Pvt. Limited to Sri Krishna Sweets Global Pvt. Li....
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....any'. The two situations are different and distinct. Had it been the intention of the Legislature that the statutory limitation should run from the date on which an aggrieved person obtained knowledge of the registration/incorporation of a company, it could very well have stated so in Section 16 of the 2013 Act as well. This argument is thus rejected. 26. Section 16 of the 2013 Act, to the extent to which it is relevant, reads thus: 16. 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, - (a) in the opinion of the Central Government, is identical with or too nearly 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 re....
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....n 16(1)(b) only. 31. The decision in Satpuda Infracon Pvt. Ltd. Vs M/s.Satpura Infracon Pvt. Ltd. & Ors. [ILR (2017 MP 2645] does not advance the case of R2. That case was decided in light of the admitted fact that the application decided under the order impugned was not preferred by a registered proprietor of a trademark. It is thus that the Court held that Section 16(1)(b) of the 2013 Act was not attracted. 32. In that context, they do hold that the Central Government may form an opinion under clause (i) of Section 16(1) taking a cue from an application preferred by an aggrieved person. However, such a situation has not arisen in this case and it has never been anyone's case that the impugned proceedings have their genesis is Section 16(1)(a) of the 2013 Act. This argument is also rejected. 33. The petitioner then presses into service the provisions under the 1956 Act and the limitation thereunder. Their argument appears to be, that at the time when the petitioner company was incorporated, it was the 1956 Act that was in force. Section 22 provided for a limitation of 5 years from coming to know of the incorporation of a company, to seek rectification of its name. Thus, accordi....
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....s struck down. 40. 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. 41. In the case of B.K.Educational Services Private Limited Vs Parag Gupta and Associates [2019 (11) SCC 633], while dealing with a matter under the Insolvency and Bankruptcy Code, 2016, the Hon'ble Supreme Court interpreted the phrase 'debt due'. They held that such debts that were due would obviously refer only to those debts that were due and payable and no debts that were stale or time barred. 42. In this context, while extracting the relevant portion of the decision in the case of Thirumalai Chemicals Ltd. v. Union of India[(2011) 6 SCC 739 : (2011) 3 SCC (Civ) 458], they state at paragraphs 59 and 60, as follows: 59. This aspect of the matter is brought out rather well inThirumalai Chemicals Ltd. v. Union of India[(2011) 6 SCC 739 : (2011) 3 SCC (Civ) 458] as follows: ...... 24. Right of appeal may be a substantive right but the procedure for filing the appeal including the period of limitati....
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....e interim applications by the Trial Court on 05.06.2017 or the decision of this Court in the Civil Miscellaneous Appeals on 18.09.2017. The narration in the counter affidavit stops with the prayer for permanent injunction before the Trial Court. 47. I do believe that it would have been appropriate in the interests of full disclosure, for the subsequent events to have been recorded as well, seeing as the counter has been filed only on 24.11.2022 and these are matters of record. 48. The Hon'ble Supreme Court in S.Govina Menon Vs The Union of India and Another [AIR 1967 SC 1274] considered the challenge to a judgment of the Kerala High court dismissing the Writ Appeal filed by the appellant challenging enquiry proceedings under Rule 5 of the All India Services (Discipline and Appeal) Rules, 1955. The fate of that appeal was against the appellant as the Court was of the view that no case has been made out for grant of Writ of Prohibition. 49. At paragraph 5, they outlined the scope of interference under Article 226 in light of the prayer for prohibition in the following terms: 5. The jurisdiction for grant of a writ of prohibition is primarily supervisory and the object of tha....