IN THE MADRAS HIGH COURT 

Mohan Parasaran for the petitioners in W.P. No. 12472 of 1989 and W.M.P. No. 17958 of 1989 and for respondents Nos. 1 to 3 in W.M.P. No. 11029 of 1994. 

P. Govindarajan, Additional Central Government Standing Counsel, for respondents Nos. 1 and 2 in W.P. No. 12472 of 1989 and W.M.P. No. 17958 of 1989 and for respondents Nos. 4 and 5 in W.M.P. No. 11029 of 1994. 

N. S. Sivam for respondents Nos. 3 and 4 in W.P. No. 12472 of 1989 and W.M.P. No. 17958 of 1989 and for the petitioners in W.M.P. No. 11029 of 1994. 

Anbumani for respondent No. 5 in W.P. No. 12472 of 1989 and W.M.P. No. 17958 of 1989. 

JUDGMENT 

Y. VENKATACHALAM J. - Invoking article 226 of the Constitution of India, the petitioner herein has filed the present writ petition seeking for a writ of certiorarified mandamus calling for the records comprised in the proceedings of the first respondent dated July 7, 1989, in Ref. No. 4/22/TN of 1988 and to quash the said proceedings dated July 7, 1989, and consequently forbear the respondents from interfering with the petitioners' right to use the name "Kilburn" in connection with their businesses. 

In support of the writ petition, the petitioner herein has filed an affidavit wherein they have narrated all the facts and circumstances that forced them to file the present writ petition and requested this court to allow the writ petition as prayed for. Per contra, on behalf of respondents Nos. 1 and 2 a counter-affidavit has been filed rebutting all the material allegations levelled against them one after the other and ultimately they have requested this court to dismiss the writ petition for want of merit. 

Heard the arguments advanced by learned counsel appearing for the respective parties. I have perused the contents of the affidavit and counter-affidavit together with all other relevant material documents available on record in the form of typed set of papers. I have also taken into consideration the various points raised by learned counsel appearing for the respective parties during the course of their arguments. 

In the above facts and circumstances of the case, the only point that arises for consideration in this case is, as to whether there are any valid grounds to allow this writ petition or not. 

The brief facts of the case of the petitioner as seen from the affidavit are as follows : 

The petitioner companies are interconnected and associated companies under the same management. In the present writ petition they are seeking to challenge the order of the first respondent dated July 7, 1989, passed under section 22 (1) of the Companies Act, 1956, in his Ref. No. 4/22/TN of 1988 directing the second and third petitioners to change their registered names namely Kilburn Starters Ltd., Kilburn Control Systems Ltd. The first petitioner Kilburn Electricals Limited are manufacturers of various electrical switchgears including Kilburn starters and Kilburn control systems by which name the design and construction are identified by the buyer in the market. The first petitioner, Kilburn Electricals Limited was registered by the Registrar of Companies, Calcutta, on April 11, 1986, against an application filed by V. K. Singhi and Co., Calcutta, and the company was incorporated at Madras on July 15, 1987, and there was no other company which was registered at Calcutta with the name as Kilburn Company Ltd., in the year 1981. Even during the time of registration of Kilburn Electricals, the first petitioner, at Madras, there was already a pre-existing company at Calcutta with the same name Kilburn Electricals Ltd. The second respondent by his proceedings dated June 16, 1987, in No. 109/N/S/at/6/87 informed the first petitioner that the same name cannot be registered in view of the fact that there was already a pre-existing company with the same name in Calcutta. In view of the objections raised by the second respondent, the first petitioner approached the Calcutta-based promoters and accordingly by letter dated July 4, 1987, the applicants before the Registrar of Companies, Calcutta, who had sought to incorporate the company at Calcutta with the name Kilburn Electricals Ltd., viz., Mr. V. K. Singhi and Mr. Rajiv Khaitan informed both the second respondent as well as the Registrar of Companies, West Bengal that they no longer shall incorporate the company at Calcutta with the name Kilburn Electricals Ltd., and as such informed the said authorities that they were withdrawing their application and signified their no objection to the first petitioner being incorporated at Madras by Sri S. Srinivasan and A. D. Nanaiya. Similarly the other company with its name Kilburn, viz., Kilburn Company Ltd., Calcutta, by its letter dated May 28, 1987, addressed to the second respondent had clearly intimated that they had no objection for allowing the name Kilburn Electricals Ltd., to be formed by the said S. Srinivasan and A. D. Nanaiya at Madras. Thus, the Madras company viz., Kilburn Electricals Limited itself was incorporated based on the above said letters one given by Mr. V. K. Singhi and Mr.Rajiv Khaitan, promoter, Kilburn Ltd., to the second respondent, who, after examining the said letters and the no-objections had permitted the first petitioners to use the word "Kilburn Electricals Limited". This Kilburn Company Ltd. is a company under one other company by name Macneill and Magor Ltd., Calcutta. This company had a division known as Kilburn Electricals Division. In pursuance of the approval given by the members in the extraordinary general body meeting, the board of directors of Macneill and Magor Ltd., made an offer to Kilburn. Electricals Limited which is a registered small scale industry in Tamil Nadu to take over the Kilburn Electricals Division of Macneill and Magor Ltd. In terms of the above offer, Kilburn Electricals Ltd. took over the operations of Kilburn Electricals Division of Macneill and Magor Ltd. This factory of Kilburn Electricals Division was manufacturing Kilburn starters and Kilburn control systems until March 31, 1988, and therefore, the very same products continued to be manufactured by Kilburn Electricals Ltd. Thus the first petitioner which was original] incorporated in Madras from July 15, 1987, in view of the package as suggested by Macneill and Magor Ltd., took over the Kilburn Electricals Division at Madras with effect from April 1, 1988, offering all the employees of the Kilburn Electricals Division, Madras of Macneill and Magor Ltd., employment on their rolls. With the takeover of Kilburn Electricals Division of Macneill and Magor Ltd., by Kilburn Electricals Limited, all rights in respect of designs, copyrights, know-how, etc. in usage in the Slid Kilburn Electricals Division passed on to the first petitioner and the free to manufacture the products such as Kilburn starters and Kilburn control systems in such manner and such ways in such factories at their. (discretion in the best interest to bring the operations viable. The revival or the taking over of the factory of the erstwhile Kilburn Electricals Division of Macneill and Magor Ltd. which was a sick and unviable unit employing a large number of people surplus to their requirements, required various steps to be taken to take advantage of the various concessions extended by the State and Central Governments for the small scale industry in areas of excise duty, power, etc., and the revival called for manufacturing Kilburn starters and Kilburn control systems in different units under the same management and control of the first petitioner. Therefore, the first petitioner floated the two other companies, petitioners Nos. 2 and 3 to exclusively manufacture items known as Kilburn starters and Kilburn control systems which were earlier made in the Kilburn Electricals Division of Macneill and Magor Ltd., which was since taken over by them. After thorough scrutiny and after obtaining clarification from the fir petitioner, the second respondent allowed the registration of name of petitioners Nos. 2 and 3. According to the petitioners a letter seems to have been sent on behalf of certain companies namely Kilburn Company Ltd., Kilburn Reprographics Ltd. registered at Calcutta stating that the name "Kilburn" was the brand name which was used by Macneill and Magor Ltd. with its subsidiaries and associates and that the same cannot be allotted to be used by other companies and requested the first respondent that if any application has been received for incorporating a company bearing the name "Kilburn" at Madras, such registration should not be considered and the approval should not be granted. Based on the said letter the first respondent by letter dated February 17, 1989, contained in his Letter No. 4/22/TN of 1988 directed the petitioners to furnish explanation within ten days based on the letter written to them by Khaitan and Co., dated November 28, 1988. Explanations were given to the first respondent that there was no basis in the letter written by the said Calcutta based companies objecting to the registration of the second and third petitioners which was under the same management of the first petitioner which were interconnected companies of the first petitioner. Subsequently by letter dated March 27, 1989, the first respondent issued a show-cause notice seeking for rectification of the name of the second and third petitioners under section 22 of the Companies Act and directed the second and third petitioners to show cause within 15 days as to why the names of the second and third petitioners which were closely resembling the name of another company registered on December 22, 1981, in the State of West Bengal, namely, Kilburn Company Ltd., should not be changed. The petitioners by letter dated April 10, 1989, replied to the show-cause notice and had stated that there was no basis if any complaints were made against them by the Calcutta based companies and only with the concurrence and knowledge of the Calcutta based companies the name of the first petitioner was registered and the second and third petitioners are only units which have been floated by the first petitioner and which are interconnected with the first petitioner manufacturing the very same items manufactured by the first petitioner, there can be no objection whatsoever for the second and third petitioners being registered and the provision of section 22 (1)(b) of the Act will have no application to the facts of the case. It is submitted by the petitioners that the names of the petitioners were registered only after due deliberations and not due to any inadvertence or otherwise and there was therefore no occasion for the second respondent to invoke his powers for rectification of the name under section 22 under, section 20, a name has been registered with consent, there is no question of any person who has already waived or disclaimed that particular name coming forward to object to the use of the name by the other to whom the right has been conferred with consent. It is also the case of the petitioners that the very action of the second respondent clearly lacked jurisdiction in view of the fact that the name of the second petitioner was allowed to be registered as early as oil October 20, 1987, whereas the action initiated by the first respondent was long after the expiry of 12 months after the name was allowed to the second petitioner. Inter alia, it is also contended by the petitioners that inasmuch as the show-cause notice was dated March 27, 1989, and the final order has been passed in July, 1989, the very order of the first respondent and the ultimate decision would be without jurisdiction. It is also stated by the petitioners that the Calcutta parties have not sent any notice or addressed any letters to petitioners Nos. 2 and 3 on this subject. It was further submitted that since the right to use the word Kilburn has been given to the first petitioner who has taken over the Kilburn Electrical Division of Macneill and Magor Ltd. and since the agreement between the parties provide for manufacture of all electrical goods such as Kilburn starters and Kilburn control systems, it will not make any difference if the first petitioner manufactures or its interconnected and associated companies manufacture more particularly when all are under the same management. Hence this writ petition. 

Per contra, on behalf of the respondents, a counter-affidavit has been filed contending that M/s. Khaitan and Company, Advocates and Notary vide their letter dated November 28, 1988, addressed to the Registrar of Companies, Tamil Nadu, on behalf of their clients viz., 1. Kilburn Company Ltd., 2. Kilburn Reprographics Ltd., 3. Kilburn Engineering Ltd. and 4. Macneill and Magor Ltd. had requested the Registrar of Companies, Tamil Nadu, not to allow the name "Kilburn" to be used by any person for the purpose of including it in the name of any company since M/s. Macneill and Magor Ltd. and Kilburn Company Ltd., had allowed the use of the name "Kilburn" by other associate companies like "Kilburn Engineering Limited and Kilburn Reprographic Ltd. at Calcutta and Kulburn Electricals Ltd. at Madras and that no other person had been allowed to use the name of "Kilburn" in the name. It is the case of the respondents that the contention of the petitioners that section 22 (1)(b) will not have any application in respect of the second and third petitioners because there was no other company existing with similar names is not correct since there is a company by name Kilburn Company Limited in the State of West Bengal which was incorporated on December 22, 1981 and the said company is still in existence. It is also their case that it is not correct to state that the names of the second and third petitioner companies have been registered with the consent and the consent given by M/s. Macneill and Magor Limited, Calcutta was only in respect of the registration of the first petitioner-company, i.e., Kilburn Electricals Ltd. It is the categorical case of the respondents that the petitioners have not obtained specific consent at the time of registration of the second and third petitioner companies from M/s. Macneill and Magor Ltd. It is contended by 'Electrical Ltd. could the respondents that the contention that M/s. Kilburn float other companies with the key word "Kilburn" as a part of name is not acceptable for the simple reason that no such authority was given to Kilburn Electricals Limited by M/s. Macneill and Magor Ltd. or Kilburn Company Limited. In regard to the time limit of 12 months prescribed under section 22 (1)(b) of the Act, it is submitted by the respondents that the period of 12 months should be taken into account only from the date of registration of the companies and not from the date on which the names were allowed as stated by the petitioners. The Registrar of Companies, Tamil Nadu, had registered the second and third petitioners inadvertently. He obtained no objection only from the first petitioner who in fact had no right to give such "no objection". That apart it is the case of the respondents that at the time of registration of the second and third petitioners, the second respondent was not aware of the fact that the first petitioner did not have the power to give any such no objection certificate. Therefore, it is contended by the respondents that the registration of the second and third petitioner companies by the Registrar of Companies was due to inadvertence only. Therefore, it is contended by the respondents that the first respondent was justified in invoking the powers under section 22 of the Act after examining the facts placed by both the parties before him. Hence, the impugned direction of the first respondent is not arbitrary and illegal in view of the facts of this case and in such circumstances, the writ petition is liable to be dismissed. 

Having seen the entire material available on record and from the facts and circumstances of this case and also from the claims and counter claims made by the parties, the following are the admitted facts. The name "Kilburn Electricals Limited" was made available by the Registrar of Companies, Tamil Nadu only after obtaining no objection for allowing the said name from Macneill and Magor Limited and Kilburn Co. Ltd. The names "Kilburn Starters Ltd. and "Kilburn Control Systems Ltd." were allowed by the Registrar of Companies, Tamil Nadu and the companies were incorporated on July 11, 1988 and August 23, 1988, respectively. Before incorporation, the Registrar of Companies, Tamil Nadu, obtained a no objection certificate from Kilburn Electricals Limited., M/s. Khaitan and Company, Advocates and Notary, vide their letter dated November 28, 1988, addressed to the Registrar of Companies, Tamil Nadu on behalf of their clients, viz., 1. Kilburn Company Ltd., 2. Kilburn Reprographics Ltd., 3. Kilburn Engineering Ltd. and 4. Macneill and Magor Ltd. had requested the Registrar of Companies, Tamil Nadu, not to allow the name "Kilburn" to be used by any person for the purpose of including it in the name of any company since M/s. Macneill and Magor Limited and Kilburn Company Ltd. had allowed the use of the name "Kilburn" by other associate companies like Kilburn Engineering Ltd. and Kilburn Reprographics Ltd. at Calcutta and Kilburn Electricals Limited at Madras and that no other person had been allowed to use the name of "Kilburn" in the name, the said objections and other facts which were put forth before the Regional Director on behalf of the petitioners as well as the complaints have been examined in detail before taking a decision in the matter. After careful consideration of the complaints received from the Calcutta based companies, the second and third petitioners were directed to change their names by the impugned order. 

Inter alia, it is the contention of the petitioners that there was no basis if any complaints were made against them by the Calcutta based companies and only with the concurrence and knowledge of the Calcutta based companies the name of the first petitioner was registered and the second and third petitioners are only units which have been floated by the first petitioner and which are interconnected with the first petitioner manufacturing the very same items manufactured by the first petitioner, there can be no objection whatsoever for the second and third petitioners being registered and the provision of section 22 (1)(b) of the Act will-have no application to the facts of the case. But it is significant to note that the second respondent registered the company "Kilburn Electricals Ltd." on 91 July 15, 1987, in which case the Calcutta based companies M/s. Macneill and Magor Ltd. and Kilburn company Ltd. have conveyed no objection in using the name "Kilburn" whereas in regard to the registration of the second and third petitioner companies which were registered on July 11, 1988 and August 23, 1988, respectively no such "no objection has been produced before the Registrar of Companies from the two Calcutta based companies. The Registrar of Companies, Tamil Nadu had registered the second and third petitioners inadvertently. He obtained no objection only from the first petitioner who in fact had no right to give such "no objection". Further it is very clear that at the time of registration of the second and third petitioners, the second respondent was not aware that the first petitioner did not have the power to give any such no objection certificate. Therefore it is rightly contended by the respondent that the registration of the second and third petitioner companies by the Registrar of Companies was due to inadvertence only. It is further significant to note that the company on whose behalf complaints were made have conveyed no objection for the use of the name "Kilburn" only in respect of the registration of the first petitioner-company and not, for the second and third petitioner companies. Therefore, after careful consideration of the complaints received from the Calcutta based companies, the second and, third petitioners were directed to change their names. That apart it is also contended by the respondents that opportunity of personal hearing was all given to the counsel representing the petitioners. That cannot be disputed by the petitioners. Further, it is contended by the respondents that the first respondent was justified in invoking the powers under section 22 of the Act after examining the facts placed by both the parties before him. That apart the respondents have also made it clear that the action under section 22 (1)(b) of the Companies Act, 1956, had been taken against the second petitioner before the expiry of 12 months from the date of registration and hence the petitioners cannot have any grievance over the jurisdiction also. In this regard it is significant to note that the dates of registration of the second and third petitioner companies were on July 11, 1988 and August 23, 1988, respectively, and the directions issued on July 7, 1989 were within the time stipulated under section 22 (1)(b) of the Act. Therefore, I see every force in the above contention of the respondents and that therefore I am of the clear view that the impugned order of the first respondent is well within the jurisdiction under section 22 (1)(b) of the Act, and also they are not arbitrary and illegal as claimed by the petitioners herein. 

Therefore, for all the aforesaid reasons and in the facts and circumstances of this case and also in view of my above discussions with regard to the various aspects of this case, I am of the clear view that the petitioners herein have failed to make out any case in their favour and that therefore there is no need for any interference with the impugned proceedings of the respondents in this writ petition. Thus the writ petition fails and the same is liable to be dismissed for want of merits. 

In the result, the writ petition is dismissed. No costs. Consequently W.M.P. Nos. 11029 of 1994 and 17958 of 1989 are also dismissed.