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TMI Blog2008 (6) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... w Delhi, is filed by the respondents in the writ petition on or about July 5, 2000. 4. The relevant facts leading to filing of the said applications are summarised as under: Under the instructions of the Government of India, relating to the disposal of building sites in the New Capital of Delhi, the Chief Commissioner of Delhi granted a perpetual lease on March 31, 1958 to Swadeshi Cotton Mills Limited, Kanpur, in a plot of land measuring about 0.179 acres being plot No. 145 in block No. 171 in the site acquired for erection of New Capital of Delhi. 5. The relevant clause for the purpose of deciding these applications runs as under: 2(13) The Lessee shall before any assignment or transfer of the said premises hereby demised or any part thereof obtain from the Lessor or the Chief Commissioner of Delhi or such officer or body as the Lessor may authorise in this behalf approval in writing of the said assignment or transfer and all such assignees and transferees and the heirs of the Lessee shall be bound by all the covenants and conditions herein contained and be answerable in all respects therefore. Provided also that the Lessor shall be entitled to claim and recover a portion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of the said plot of land in view of change of name of the company from Marble Trading Company Limited to W. H. Targett (India) Limited. 14. On or about August 21, 1991 the Deputy Land and Development Officer wrote to W. H. Targett (India) Limited, inter alia, alleging that there has been a transfer of the property from Marble Trading Company Limited to W. H. Targett (India) Limited; such transfer has been illegal as it has been carried out without obtaining prior permission of the lessor and without paying the government dues. However, W.H. Targett (India) Limited was informed that the lessor would regularize such alleged unauthorised transactions provided certain terms and conditions be complied with. 15. Being aggrieved this application under Article 226 of the Constitution of India was moved before this Court, which was registered as Matter No. 4241 of 1991. 16. The respondents contested the writ application by filing an affidavit-in-opposition. The respondents in the said opposition, inter alia, contended as under: ...I repeat that there has been a wholesale change in the Board of Directors and Shareholders of Marble Trading Company Limited, and the writ petitioner. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the earlier company ceased to exist upon grant of fresh certificate of incorporation consequent of change of name. In Sulphur Dyes Ltd. v. Hickson and Dadajee Limited reported in 1996(83) CompCas 533 it has been held that the company which has changed its name would be entitled to ask those companies in which its holding shares to substitute a company in the name in the Register of Members in place of other name. The same reasoning applies also in the instant case, inasmuch as the first petitioner has merely prayed for substitution of its name in place and stead of Marble Trading Co. Ltd. For the reasons aforementioned this application is allowed. The impugned order dated 21.8.91 as contained in annexure Q page 52 of the writ application is quashed and the respondents are hereby directed to mutate the name of the first petitioner in its Register instead and placed of 'Marble Trading Co. Ltd. 18. In spite of notice and knowledge of the said judgment and order dated December 3, 1998 the respondents have failed to act in terms of the said order. Therefore, the present application for contempt is filed, which is registered as C. C. No. 405 of 1999. 19. An application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhury submits that the Hon'ble Judge while allowing the writ petition did not consider such an important issue and non-consideration of the application of the provisions of Sections 5 and 6 of the Transfer of Property Act, 1882, are patent errors on the face of the records necessitating review of the judgment and order dated December 3, 1998. 22. Section 5 of the Transfer of Property Act, 1882, defines the term Transfer of Property'. Section 5 runs as under: 5. Transfer of property" defined. - In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, (or to himself) and one or more other living persons; and "to transfer property" is to perform such act. In this section "living person" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals. 23. Section 5 signifies that every possible interest, which a person can acquire, hold and enjoy are capable o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere are some legal restrictions to the contrary. First part of Section 6 provides that every kind of property is transferable unless such transfer is restricted by Transfer of Property Act, 1882, or any other law for the time being in force. 27. Under Sub-sections (a), (d), (f), (g) and (i) certain things are excluded from the category of property, which can be transferred. Sub-section (b) restricts transfer to a particular class of transferee. Sub-sections (c) and (e) deal with cases in which the rights cannot be transferred by themselves. Sub-section (h) is a general section covering most of the aforementioned exceptions. 28. The Supreme Court of India in the case of Parsion Devi and Ors. v. Sumitri Devi and Ors. reported in (1997) 8 SCC 715 holds that under Order 47, Rule 1 of the Code of Civil Procedure a judgment may be open to review, inter alia, if there is a mistake or an error apparent on the face of the record. An error, which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47, Rule 1 of the Code of Civil Procedure. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt signified in writing, change its name. 32. Section 23 of the Companies Act, 1956, enumerates the effect of the change of name by a company. Sub-section (3) of Section 23 of the said Act contemplates that the change of name shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against it, and any legal proceedings, which might have been continued or commenced by or against the company by its former name may be continued by or against the company by its new name. 33. The company, in its former name, entered into an agreement for sale with the erstwhile lessee. Therefore, transaction commenced before the change of name by the company. The matter was pursued in government departments. The Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 and the government accorded permission to transfer of leasehold interest by the erstwhile lessee in favour of the company. In the meantime, the name of the company was changed by adopting a special resolution. The approval of the Central Government was accorded. The Registrar, also, issued a fresh certificate of incorporation recording the present name of the company. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may, also, be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. 37. I am invited to decide about the apparent error, if any, discernible from the judgment sought to be reviewed. I am not satisfied that the judgment under review is erroneous on the face of it. This application for review is filed to re-argue the very same points rightly rejected by this Court. Therefore, this application for review stands rejected. I make no order as to costs. 38. In so far as the application for contempt is concerned non-compliance of the order by the contemnors is admitted. By order dated December 3, 1998 this Court, inter alia, directed the respondents in the writ petition to mutate the name of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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