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Judgment
This writ petition, challenging the order of the first respondent, the Regional Director, Southern Region, Chennai dated 20.12.2000 arises under
the following circumstances:
(1) M/s. Sippy Films Private Limited, the second respondent company is registered with the Registrar of Companies, Mumbai. The main object of
the second respondent company is to make, distribute and deal in movies apart from others which are identical. The second respondent company
produced a Hindi movie titled as ""Sholay"". That was released on 15.08.1975. According to the second respondent, though it had produced some
of the most memorable movies in Indian Cinema like ""Shaan, Brahmachari, Andaz, Saagar"" etc., and even a famous television serial by name
Buniyaad"", the film ""Sholay"" is a major blockbuster motion picture, which was turned to become one of the most successful and renowned Indian
films ever. It earns the international name not only in cine field but also other fields like trades. The name ""Sholay"" is unique and thereby the second
respondent has come to be distinctly identified with the popular name ""Sholay"" on account of its popularity, revenue, goodwill and fame. Hence,
the second respondent company applied for registration of the title ""Sholay"" as a trade mark for perfumes, non-medicated cosmetics such as
shampoos, soaps etc., video films, tapes, cassettes etc., clocks, wrist watches, costumes, jewellery etc., and in marketing various by-products.
The second respondent incorporated a company by name ""Sholay Media and Entertainment"" on 11.09.2000. While that being so, the second
respondent company came to know that that petitioner incorporated a company in the name of ""Sholay.Com Private Limited"" on 21.12.1999 with
the main object to carry on the business of designing, developing, manufacturing computer software and to undertake and execute any contract
involving computer information systems and to buy, sell and deal in all kinds of and description of communication software and hardware. Hence,
the second respondent applied to the first respondent on 21.06.2000 for issuance of directions u/s 22 of the Companies Act, 1956 to the
petitioner company to change its name on the ground that the name ""Sholay"" forming part of the petitioner company is identical to the trade name
Sholay"" of the second respondent company and that the name of the petitioner company is likely to mislead the members of the public and
business community about its possible association with the second respondent company. The said application was allowed by the first respondent
by order dated 20.12.2000 with further direction to the petitioner company to delete the word ""Sholay"" from its existing name and change to some
other prefix within a period of three months from the date of the order.
2.The above order of the first respondent is challenged in this writ petition. Though both the learned counsel for the petitioner and the respondents
elaborately argued on the merits of the case as to whether the second respondent, who has not registered the name ""Sholay"" as a company, could
maintain an application before the first respondent, seeking for a direction to delete the name and cited several authorities on this aspect, I am not
inclined to go into those submissions as the writ petition could be disposed of on the preliminary issue namely, whether the petitioner was given
sufficient opportunity before the impugned order was passed.
3.Mr.C.A.Theagarajan, learned counsel appearing for the petitioner would submit that before the impugned order was passed, the petitioner was
not given any opportunity by the first respondent to put forth its case. Hence, the learned counsel submits that the impugned order is liable to be set
aside on the ground of violation of principles of natural justice. However, Mr. T.S. Sivagnanam, learned counsel appearing for the first respondent,
by producing the files, contended that the petitioner was given notice before the impugned order was passed and the petitioner did not appear for
enquiry. Hence, the question of violation of principles of natural justice does not arise in this case and that too, when the petitioner himself failed to
appear before the first respondent for enquiry.
4.Supporting the stand of the first respondent, Mr. Sivathanu, learned counsel appearing for the second respondent would submit that a person
who did not avail the opportunity of hearing by refraining from participating in the enquiry, cannot later on complain that the order was passed
without any opportunity, and behind his back.
5.In view of the above submissions, it would be proper for this Court to find out as to whether the impugned order was passed by the first
respondent after giving due opportunity to the petitioner.
6.In the affidavit filed in support of the petition, it is specifically stated that the petitioner company was incorporated in the name and style of
Sholay.Com Private Limited"" on 21.12.1999, on which date the name ""Sholay"" was not registered by the second respondent. Even as on date,
only applications are pending with the Registrar of Companies from the second respondent to register the name ""Sholay"". By virtue of the
incorporation, the petitioner is doing the business under the said registered name in designing, developing and manufacturing computer software
and also marketing the same in India and abroad. While that be so, an application appears to have been filed by the second respondent before the
first respondent. Though, it is claimed that a notice dated 04.12.2000 was sent to the petitioner calling upon him to appear before the first
respondent on 18.12.2000 at 12.00 noon, the said notice was received by the petitioner only on 19.12.2000 at 18.45 hours. On receipt of the
said notice, a fax message dated 20.12.2000 was given to the first respondent to fix an appropriate date and intimate the same in advance to the
petitioner so as to put forth its claim. Without adhering to the said request, the order of the first respondent came to be passed on 20.12.2000
itself.
7.No counter is filed by the first respondent controverting the above averments. However, files were produced to contend that the notice dated
04.12.2000 was duly served and the petitioner evaded the enquiry. I perused the files. Pursuant to the application from the second respondent
dated 21.06.2000, the second respondent in his letter dated 05.07.2000, advised the Registrar of Companies to furnish full details of the writ
petitioner company as well a report of the application made by the second respondent in this writ petition. Such report was received vide letter of
the Registrar of Companies dated 26.08.2000. The first respondent again in its letter dated 04.10.2000, advised the Registrar of Companies to
furnish the address of the registered office and the directors of the writ petitioner company, together with the object for which the said company
was incorporated. The reply dated 11.10.2000 was also received from the Registrar of Companies. Thereafter only, the first respondent claims to
have communicated a copy of the application to the writ petitioner on 23.10.2000. Though such a copy is found at page 192 of the file and the
seal for despatch of the said letter is also made, I do not find any corresponding acknowledgment of the said letter from the writ petitioner.
Subsequently, it is the claim of the first respondent that notice for appearance was issued on 04.12.2000. Here again, I do not find any
acknowledgment of the said notice from the writ petitioner. At page 187 of the file, along with the copy of the notice dated 04.12.2000, I find only
a transmission report evidencing of the posting of the said letter on 05.12.2000. Except the above, I do not find any material or record to show
that either letter dated 23.10.2000 or the notice dated 04.12.2000 sent by the first respondent was either served or acknowledged by the writ
petitioner. I also find that the notice dated 04.12.2000 was dispatched again on 21.12.2000 as could be seen from page 19 of the file where the
seal of the office of Regional Director, Department of Company Affairs dated 21.12.2000 in No.0-3347 is found. In these set of facts, the letter of
the writ petitioner dated 20.12.2000 assumes importance. The said letter finds place at page 18 of the file and it reads as follows:
Date: 20th December, 2000
To
The Regional Director,
Govt. Of India,
Ministry of Law, Justice & Company Affairs,
Dept. of Company Affairs,
Shastri Bhavan, 26, Haddows Road,
Chennai.
Kind Attn: Mr. V.Sreenivasa Rao
Respected Sir,
Sub: Application u/s. 22 of Companies Act, 1956 by M/s. Sippy Films Pvt. Ltd., against M/s. Sholay.com Private Limited.
Ref: Your letter No.4/22/B-6/2000 dated 4 December, 2000 received by us on 19 December, 2000 at 18.45 hrs.
With regard to the above subject and vide the above referred letter your kind self had required us to appear before you on 18-12-2000 at 12
Noon, either in person or through authorized representative but unfortunately the subject referred letter was received by us only on 19-12-2000 at
18:45 Hrs. as such we were not able to comply with your requisition.
Therefore without prejudice to our rights we kindly request you to fix an appropriate date and intimate us in advance and further request you to
provide us with necessary material/papers if any have been submitted by the applicant i.e. M/s. Sippy Films Pvt. Ltd. enabling us to appear before
you with necessary papers in support of our case.
Thanking you,
Yours truly,
for Sholay.Com Pvt. Ltd.
Sd/-
Director
8.From the above letter and the stand taken by the petitioner coupled with the absence of acknowledgment of the letter dated 23.10.2000 and
04.12.2000 of the respondent, I have no hesitation to hold that the notice said to have despatched by the first respondent on 04.12.2000 was in
fact received by the petitioner on 19.12.2000 at 18.45 hours only. Immediately on the next day, i.e., on 20.12.2000, the petitioner had sent the
above letter both by fax and by speed post seeking for time. The first respondent, however, on noticing that the petitioner did not appear on
18.12.2000 has passed orders on 20.12.2000.
9.From the impugned order, it is seen that the first respondent decided to dispose of the matter on 20.12.2000 as the last date to adjudicate the
matter u/s 22 of the Companies Act was fast approaching. Except the said reason, even in the impugned order, it is not stated as to whether the
notice dated 04.12.2000 was either served or acknowledged by the petitioner. Merely because the last date was fast approaching and the first
respondent should dispose of the application within the stipulated period, that does not mean the right to a fair and reasonable opportunity to the
petitioner could be denied. It is a well settled law that before depriving a right accrued on a person, that person must be given opportunity to put
forth his case.
10.It is not in dispute that the petitioner has registered its name as ""Sholay.Com"" as early as on 21.12.1999. A direction has been given in the
impugned order to the writ petitioner to delete the name ""Sholay"" and change the said name to some other prefix. Such a direction would certainly
affect the right accrued on the petitioner, by virtue of the incorporation of the company and consequentially its trade.
11.Hence, in my considered view, in the absence of a reasonable opportunity to defend the application filed by the second respondent seeking for
a direction u/s 22 of the Companies Act, the impugned order is liable to be set aside. Accordingly, the impugned order is set aside solely on the
ground of violation of principles of natural justice. The first respondent is directed to hold the enquiry on 05.05.2003 commencing from 10.00 a.m.
and if necessary on a further date fixed by him, duly intimate to either parties and pass orders on merits of the case after hearing both the petitioner
and the second respondent. I make it clear that I have not expressed any opinion on the merits of the rival claims.
12.With the above observation, the impugned order is set aside and the writ petition is allowed. No costs.