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TMI Blog2009 (9) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... e application was not belated. In any event, it may be safely said that the second respondent's remedy under section 22 had become barred under the unamended provision. The second respondent then could not, under a different avatar as the proprietor of a registered trade mark, claim an extended period of limitation for purposes of the Companies Act. The remedy, if any, against infringement of a registered trade mark is concerned, being available to the second respondent to be established and adjudicated in independent proceedings, the application, by the second respondent under section 22, was clearly barred and therefore, the impugned order is bad in law and is accordingly quashed. - WRIT PETITION NO 42939 OF 2004 - - - Dated:- 9-9-2009 - ANAND BYRAREDDY J. Holla and Holla for the Petitioner. N.B. Vishwanath and Udwadia Udeshi for the Respondent. JUDGMENT Anand Byrareddy, J. Heard counsel for the parties. 2. The facts of the case are as follows : The petitioner is a company incorporated under the Companies Act, 1956, in the State of Karnataka as on February 7, 1986, with the object of manufacturing and selling rear view mirrors and refl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M, GE Power Controls, Toyota Kirloskar, are some of the names which source their requirement from the petitioner-company. In this background, the petitioner had received a letter from the second respondent M/s. Technova Imaging Systems P. Ltd., dated September 25, 2002, claiming that it is the proprietor of the name "Technova" and calling upon the petitioner to desist from using the said name and to change the name of the petitioner within 15 days. The petitioner replied that it was not in a position to comply and that its name had been duly registered with the Registrar of Companies, as early as in the year 1995, without objection from any quarter and it refused to comply. The second respondent did not choose to react for about nine months. However on September 11, 2003, a legal notice was addressed reiterating its earlier demand. The petitioner, in turn, replied through its counsel on September 24, 2003, refuting the claim of the second respondent that the name of the petitioner and that of the second respondent were deceptively similar, especially, having regard to the fact that the products manufactured by them are completely different. The second respondent had thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re this court on October 19, 2004, this court directed issuance of rule and granted an interim order as prayed for. The second respondent having entered appearance has contested the petition to contend as follows : That it would be of importance to appreciate the provisions of sections 20 and 22 of the Companies Act, 1956. It is contended that the said sections came to be amended by the Trade Marks Act, 1999, with effect from September 15, 2003. Prior to its amendment, section 20 of the Companies Act, 1956, contemplated only one class of applicant, namely, a previously registered company. If the name of the proposed company was identical with or too nearly resembled that of a previously registered company, such a name was not to be permitted. After the 1999 amendment, a second class of applicants entitled to apply was introduced, namely, the holders of trade marks where the proposed name of the subsequent company too closely resembled or was identical with the said trade mark, could make an application. This provision enabling the holders of trade marks to make such application was absent prior to the amendment. And it is not the similarity of names between two companies alone th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be the date of registration of the new company. Therefore, time begins to run from the date when the applicant, who is the registered trade mark holder came to know of the existence of the company. The respondent thus contends that the petitioner-company was admittedly registered subsequent to the second respondent even with its original name Reflex Auto Products and considerably much later, with the present deceptively similar- name. The petitioner does not have a trade mark in respect of the goods with a name "Technova" while the second respondent does. The word "Technova" visually, phonetically and in spelling are identical in both companies and therefore, on a proper reading of sections 20 and 22 of the Companies Act, 1956, the petitioner must yield to the prior registration of the second respondent. 4. Shri Udaya Holla, senior advocate appearing for the petitioner contends that the Regional Director had no jurisdiction to entertain the second respondent's application under section 22 of the Companies Act, 1956, as the application is clearly barred under section 22. Under section 22(1)( ii )( b ) of the Companies Act, 1956, the Central Government has jurisdiction to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h had already become time-barred. 5. The senior advocate places reliance on the following authorities in support of his contentions : (1) Sidhvi Constructions ( India ) (P.) Ltd. v . Registrar of Companies [1997] 90 Comp Cas 299 (AP) ; (2) Sen and Pandit Electronics (P.) Ltd. v. Union of India, AIR 1999 Cal. 289 ; [2003] 115 Comp Cas 299 ; (3) Lachhman Das Arora v. Ganeshi Lal [1999] 8 SCC 532 ; (4) Union of India v . Karnataka Electricity Board, ILR 1987 Karn 2552 ; (5) Special Land Acquisition Officer v. Malakajayya Mallayya, ILR 1996 Karn 1639 ; (6) S. S. Gadgil v . Lal . Co. [1964] 53 ITR 231 (SC) ; AIR 1965 SC 171; (7) Mathukumalli Ramayya v. Upalapati Lakshmayya, AIR 1942 PC 54 ; (8) Commissioner of Sales Tax v. Mangal Sen Shyam Lal [1975] 35 STC 621 ; AIR 1975 SC 1106 ; (9) Nalinakhya Bysack v. Shyam Sunder Haldar, AIR 1953 SC 148 ; (10) Kihoto Hollohan v . Zachillhu [1992] Supp (2) SCC 651 ; (11) State of Punjab v. Kailash Nath [1989] 1 SCC 321 ; (12) Madhu Gopal v. VI Additional District Judge [1988] 4 SCC 644 ; (13) Association of Certified Public Accounts of Britain v. Secretary of State for Trade and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues to be head quartered at Bombay. There can be no deemed notice on the second respondent in this regard. On facts, the second respondent and its predecessor-in-title used the name "Technova" as a apart of corporate name since 1979. The petitioner was for the first time incorporated in the year 1986 without the word "Technova" in their name since it was then known as Reflex Auto Products P. Ltd. It was only in the year 1995, that the petitioner changed its name as Technova Tapes India P. Ltd. By then, the second respondent had been in existence for 16 years and it was well known throughout the country and even abroad. The inadvertent registration of the petitioner, therefore, clearly required to be rectified. 7. Shri Raghavan would place reliance on the judgment in Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd. [2008] 4 SCC 755, and would submit that the Supreme Court, while dealing with an apparent inconsistency between sections 174 and 175 of the Electricity Act, 2003, namely, that section 174 providing that the Act will prevail over other laws while section 175 laid down that the Act is in addition to and not in derogation of any other law, which presumably would hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction. 175 (the guna or subordinate) to make it in accordance with section 174 (the pradhan or principal). For doing so we will have to add the following words at the end of section 175 except where there is a conflict, express or implied, between a provision in this Act and any other law, in which case the former will prevail. 52. No doubt ordinarily the literal rule of interpretation should be followed, and, hence the court should neither add nor delete words in, a statute. However, in exceptional cases this can be done where not doing so would deprive certain existing words in a statute of all meaning, or some part of the statute may become absurd. 53. In the chapter on 'Exceptional Construction' in his book on Interpretation of Statutes, Maxwell writes : Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumbly not intended a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Trade Marks Act, 1999, the petitioner had been using the name "Technova Tapes India P. Ltd." for almost nine years and before the above amendment, the period of limitation for seeking any relief under section 22 was 12 months, which had expired and that once the period of limitation prescribed under law has expired, a subsequent amendment enlarging the period of limitation cannot revive rights which have already become barred by limitation (see S. S. Gadgil v. Lal . Co. [1964] 53 ITR 231 (SC) ; AIR 1965 SC 171). 11. It would be useful to extract the unamended section 22 of the Companies Act, as well as the amended section 22, for a better understanding of the rival contentions of the parties. Unamended section 22 : "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, 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 ( a )may, by ordinary res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the company shall be considered by the Central Government. (2) If a company makes default in complying with any direction given under clause ( b ) of sub-section (1), the company, and every officer who is in default, shall be punishable with fine which may extend to one thousand rupees for every day during which the default continues." 12. It is clear from a reading of the unamended section, that any such application was clearly without the jurisdiction of the competent authority as on the date of the application made by the second respondent. It is only under the amended provision, that the second respondent could claim a right to file such an application in the capacity of a registered proprietor of a trade mark, who is afforded a right under the amended provision to file an application under section 22. 13. That the second respondent's contention that with the amendment, a right had accrued and therefore extended the period of limitation to file an application under section 22, in its capacity as a proprietor of the registered trade mark, within five years of its coming to know of the registration of the petitioner-company. In the instant case, the respondent admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to exercise the power would necessarily have to be read as having been enabled to accommodate the applications filed within the period contemplated under the proviso. 15. However, given the facts and circumstances on hand, as it is not in dispute that the petitioner's name was changed and incorporated as such in the year 1995 under the Companies Act, 1956 the section could have been invoked within a period of 12 months therefrom. The section not having been so invoked, but sought to be invoked on its amendment in the year 2004, which the second respondent could have done in the year 1995, and was no longer able to do between the period after the expiry of 12 months thereafter, and till the coming into force of the amendment, while claiming under the avatar of proprietor of a registered trade mark would militate against established principles. 16. The second respondent's right to file an application, if at all, accrued after the time prescribed under the unamended section 22 of the Act had lapsed. This right cannot be said to have been revived merely by the fact that the respondent company was also in the category of applicants who may be "registered proprietors of trade ..... X X X X Extracts X X X X X X X X Extracts X X X X
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