V NANTHAGOPAL Vs. UNION OF INDIA

JUDGEMENT

(1.) BY consent the main writ petition is taken up for disposal. The prayer in the writ petition is to issue of writ of certiorarified mandamus to quash the certificate of incorporation dated 24.10.2008 issued by the third respondent for registration of Accura Electrodes India Private Limited Company, with address at 33, Nehru Street, Thottapalayam Road, Chinniampalayam Post, Coimbatore-641 062, and to direct the second respondent to forward to the first respondent for passing orders on the application under Section 22 of the Companies Act dated 29.08.2008.

(2.) FACTS:- M/s.Accura Weldrods, hereinafter referred to as the firm, was a registered partnership firm, which came into being pursuant to a deed of partnership dated 10.04.2000 and the respondents 4 and 5 were its partners. The firm was reconstituted by a deed dated 14.05.2003, by which the petitioner was admitted as one of the partners and the fifth respondent retired from the partnership firm. Pursuant to a deed of retirement dated 22.06.2008, the fourth respondent retired from the firm and the partnership was reconstituted by a deed of reconstitution dated 22.06.2008, consisting of the petitioner and his wife Tmt. G.Karpagam as partners. A Memorandum of agreement for non-compete and usage of trade mark registration was entered into between the petitioner and his wife as parties of the first part, the partnership firm as party of the second part and the fourth respondent as party of the third part. A deed of assignment dated 04.07.2008 was executed by the fourth respondent in favour of the petitioner and his wife, trading as a registered partnership firm. The dispute which has resulted in this writ petition appears to have commenced, when the fourth and fifth respondents incorporated the company under the name and style of Accura Weldrods India Private Limited for which the certificate of incorporation was issued by the third respondent on 21.07.2008. The Directors of the said company were the fourth and fifth respondents. It is seen that the petitioner herein and his wife submitted an application before the Registrar of Trademarks on 31.07.2008 for registering the mark Accura Weldrods, claiming user since 12.07.2000. This application is stated to be pending. It is the further case of the petitioner that during August 2008, he came to know that the respondents 4 & 5 have incorporated a company under the name and style Accura Weldrods India Private Limited and on coming to the know on the same the partnership firm represented by the petitioner as Managing Partner caused a legal notice dated 29.08.2008 to the second respondent with copies marked to the third respondent and Accura Weldrods, Coimbatore. In the legal notice, the petitioner by relying upon the various documents executed by the fourth respondent stated that the name of the company, which was incorporated as Accura Weldrods India Private Limited, resembles the name of the firm and that the fourth respondent has no right to start a company under the said name as he has relinquished his rights and that he has suppressed the fact before he incorporated the company. The petitioner also stated about his application before the trademark Registry for registering the name "Accura Weldrods". (Though, in the legal notice, it was claimed that it is a registered mark, the learned counsel for the petitioner would fairly submit that only an application had been presented and the same was pending with the trademark registry). Based on the above statements, the petitioner called upon the second respondent to change the name of the company M/s.Accura Weldrods India Private Limited. Along with the legal notice, copies of 12 documents were enclosed in the support of his petitioner's claim. This legal notice was received by the second respondent on 12.09.2008 as seen from the postal acknowledgment card. Thereafter, the fourth respondent by letter dated 24.09.2008 addressed to the third respondent stated that he is the one of the Directors of Accura Weldrods India Private Limited and he was one of the partner of the firm and the name M/s.Accura Weldrods has been registered under the Trade Marks Act and name of Accura Fine Fusions is also registered and he has retired from the partnership M/s.Accura Weldrods and still is one of the partner of M/s.Accura Fine Fusions, hence, he decided to change the name of the company from Accura Weldrods India Private Limited into Accura Electrods India Limited. A Special resolution is said to have been passed by the company on 13.10.2008. Thereafter, the fourth respondent in the capacity of Managing Director of Accura Weldrods India Private Limited appears to have addressed a letter to the third respondent stating that they have received a notice from the petitioner, who was the erstwhile partner of the fourth respondent in a firm called Accura Weldrods and that the fourth respondent has relinquished all his right and entitlements to the continuing partners and for better understanding and to avoid legal proceedings, they have unanimously decided to change the name as Accura Electrods India Private Limited enclosing the special resolution dated 13.10.2008. It is thereafter, the impugned certificate of incorporation consequent upon the change of name came to be issued by the third respondent on 24.10.2008.

(3.) IN the affidavit filed in support of in M.P.Nos.1 and 2 of 2010, after narrating the facts stated above. It has been stated that the respondents 4 & 5 herein are the Directors of the companies and it is at their instant the impugned order was passed by the third respondent. The petitioner had also relied upon the observations made by the Hon'ble First Bench in W.A.No.1513/2009 dated 12.11.2009 and would contend that the two companies are proper and necessary parties to the writ petition. The proposed 7th respondent, M/s.Accura Electrods INdia Private Limited represented by the fourth respondent as its Managing Director has filed a counter affidavit contending that the impleadment of the company is unnecessary. The learned counsel appearing for the proposed party would vehemently contend that his client, namely Accura Electrods INdia Private Limited are unnecessarily dragged into the litigation and that the claim of the writ petition was to change the name of Accura Weldrods INdia Private Limited and such claim has been accepted and the name of the company has been changed as Accura Electrods INdia Private Limited and therefore nothing survives in the writ petition. Therefore, it is contended that the proposed 7th respondent is not a proper or necessary party. It is relevant to note that the fourth respondent has filed a counter affidavit in M.P.No.3/2010, in which it is stated the companies are different from the share holders and the share holders have no right with reference to the name or the manner in which the name of the company is used and that the fourth and fifth respondents, who have right only to receive notice of meetings, receive divident, receive his or her share of assets as dividend if the company is wound up and are not necessary parties to the present Writ Petition. It is further stated no order can be passed against the person, who is not a party. Therefore, the fourth respondent appears to have raised a contention that unless the company is made a party no relief could be granted against it. IN fact precisely for this reason the writ petition came to be dismissed by this Court earlier by order dated 20.08.2009. However, when the fourth respondent has sworn to a counter affidavit in the capacity of Managing Director of M/s.Accura Electrods INdia Private Limited has chosen to take a stand that the company, which has come into being pursuant the impugned certificate of incorporation is neither a proper or necessary party. IN my view the stand taken by the proposed 7th respondent is not tenable. IN fact the respondents 4 and 5 were heard by the Hon'ble First Bench in W.A.No.1513/2009. While disposing of the Writ Appeal permission was granted to the petitioner herein to move an application for impleadment. IN fact, the Hon'ble First Bench observed that the absence of the two companies as party respondents in the writ petition has led to the dismissal of the writ petition and the learned counsel appearing for the petitioner accepted the findings of the learned single Judge. Therefore, the Hon'ble First Bench observed instead of amending the cause title of the Writ Appeal and keeping appeal pending permission was granted to the petitioner to amend the writ petitioner itself. Based on such observation, the writ petition was restored to the file of this Court with liberty to the appellant to move necessary impleading application as well as the application for reviving the interim order. The learned counsel for the proposed 7th respondent would submit that the application for impleading as well as for reviving the interim order will be at the discretion of this Court. I am afraid that is not the correct interpretation of the direction issued by the Hon'ble First Bench. The Hon'ble First Bench took note of the fact that the writ petition having been dismissed on a technical ground instead of keeping the Writ Appeal pending and permitting amendment of cause title, the Writ Petition itself is restored of file and impleadment application could be filed. Only in respect of the revival of the interim order, the Hon'ble First Bench observed that it will be at the discretion of this Court. Therefore, I am of the view that the proposed 6th and 7th respondents are necessarily to be impleaded. Further the impugned certification given by the third respondent is in favour of the proposed 7th respondent and the proposed 7th respondent was earlier known under the name and style as described as the proposed 6th respondent. The Directors in both the companies are the respondents 4 & 5. Therefore in order to give a binding adjudication to the matter, I deem it appropriate that the proposed 6th and 7th respondents are not only necessary parties to the writ petition, but they are also proper parties. Hence, M.P.No.1/2010 and M.P.No.2/2010 are ordered and the two companies are impleaded as 6th and 7th respondent in writ petition.