ORDER
Anand Byrareddy, J.
1. Heard the 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 7.2.1986 with the object of manufacturing and selling rear view mirrors and reflectors for automobiles. The petitioner was earlier known as M/s Reflex Auto Products Limited.
The Company diversified its activities into manufacturing industrial tapes and changed its name to M/s Technova Tapes (India) Private Limited, with effect from 26.6.1995. A fresh Certificate of Incorporation was issued by the Registrar of Companies. The petitioner manufactures industrial adhesive tapes and claims to be the leading manufacturer of the product in India. It has developed and marketed more than 80 different types of tapes with specialised applications. It is an ISO 9001:2000 company. The name of the company therefore, according to the petitioner is indicative of its intention to be an inNOVAtor inTECHnological advancement that characterises the specialised adhesive tapes developed and manufactured by it.
It is contended that the petitioner has developed goodwill and reputation that is associated with the name of the company and its products have been widely advertised since the year 1995 and at no point of time, had anyone, including the second respondent objected to the use of the name 'Technova'.
The petitioner supplies adhesive tapes to major industries engaged in the manufacture of appliances, automobiles, electrical products, electronic products, it also supplies its products to the leather and telecom industry among others. The petitioner contends that at the time of incorporation, the name 'Technova' was only intended to indicate that it was the intention of the petitioner to be a technological innovator and this intention is reflected in the successful manufacture and sale of its products and the turn-over that has consistently increased from Rs. 2.70 crore in the year 2001-2002 to Rs. 7.50 crore in the year 2004-2005 and over Rs. 10 Crore as on date.
It is contended and emphasized that the word ' Technova' is derived from two common words 'TECHnological' and 'inNOVAtor'. The word is a laudatory epithet which stands for adoption of the latest technology and has been widely used by industrial and manufacturing houses around the world.
It is contended that no person can claim monopoly over the use of the word. It is public juris. The petitioner had adopted the same in respect of its products which are technologically advanced and find diverse applications. Leading manufacturers such as LG Electronics, Carrier Refrigeration, Electrolux, Voltas, 3M, 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 Private Limited, dated 25.9.2002, 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 11.9.2003, a legal notice was addressed reiterating its earlier demand. The petitioner, in turn, replied through its counsel on 24.9.2003 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 thereafter, made an application to the Regional Director, Southern Region, Ministry of Company Affairs, (hereinafter referred to as 'the Regional Director' for brevity) under Section 22 of the Companies Act, 1956, seeking an order directing the petitioner to delete the word 'Technova', or any variant thereof, from its name.
The petitioner had received a notice from the Regional Director on 30.1.2004, of the said application. The petitioner by a letter dated 19.2.2004, replied to the notice raising certain preliminary objections to the application. It was pointed out that under Section 22 of the Companies Act, 1956, the power given to the Central Government must be exercised within 12 months of the change of name by the company and since the petitioner had been using the name for over eight years, the application itself was not capable of being considered. The petitioner also contended that it had not been provided with copies of certain exhibits referred to by the second respondent in its application and that copies of the same be provided to enable the petitioner to file its detailed objections. It was also highlighted by the petitioner that the Proviso to Section 22(1) came into force on 15.9.2004 and even if power was sought to be exercised under the said proviso, it would not apply to the petitioner's case, since the petitioner had changed its name in the year 1995, eight years before the amendment had come into force, and the same could not be applied retrospectively to the petitioner. The petitioner also sought to point out that the official Bangalore Telephone Directory for the year 1997 and 2000 displayed the petitioner's name just below the second respondent's name and in this light of the matter, the second respondent having approached the Regional Director with an application in the year 2003, would clearly demonstrate that the second respondent was aware of the petitioner's existence and did not consider that the petitioner's name was deceptively similar to its own name.
However, the Regional Director had passed an order on 28.9.2004, allowing the application filed by the second respondent and directing petitioner to delete the word ' Technova' from its name within three months from the date of the order. It is this which is sought to be challenged in the present writ petition.
3. The petition having come up before this Court on 19.10.2004, 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 15.9.2003. 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 that need be the subject matter of the application, it could be in respect of the name of a company and that of a trade mark and' further, the holder of a trade 'mark need not itself be a company as Sub-section 2 contemplates 'trade mark of any other person'
The 1999 Amendment has brought Section 22 in line with the amended Section 20 and there are now two classes of 'applicants' or 'persons aggrieved' - (a) previously registered company or (b) the holder of a registered trade mark, whether a company or not. In the case on hand, the application was made by the second respondent as the holder of a trade mark, namely, the registered trade mark of the second respondent which is identical with the name of the petitioner which is capable of creating a doubt or confusion as between the trade mark and the name of the petitioner - company
It is further contended that under the un-amended section, the limitation of one year that existed for applications being made remaining unaltered, the same would apply to applicants of the second category namely, holders of registered trade marks. As the proviso providing for five years to make such an application cannot override the main clause is an argument that is misplaced and incorrect. It is contended by the second respondent that the main clause in the Section and the proviso operate in different spheres. In that, the proviso makes a separate provision for the newly added category of applicants, namely, the holders of trade marks. To read the section in any other fashion, or as canvassed by the petitioner, would render meaningless and otiose the words 'five years' and 'of coming to notice of the registration of the company'. It is stated that it well settled that no statute can be read or interpreted in such away as to render its plain meaning nugatory. In other words, it is contended mat there is a vital distinction between the two categories (1) for applicants who are claiming as previously registered companies - the law is unchanged. The application must be made and direction obtained within 12 months of the date of registration of the new company. It is die date of registration of the new company that would be the starting point of limitation of 12 months, (2) for, applicants falling In the second category that is where the applicant claims to be the holder of the registered trade mark, the starting point would 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 do.
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 pass an order for rectification of the name well within 12 months of the registration of the name. Admittedly, the petitioner was registered with the name 'Technova' on 26.6.1995 and therefore, the Central Government could not have passed an order under Section 22 of the Act after a lapse of nine years. The proviso to the Section stipulates that no application under Clause 1(2) can be made by a registered proprietor of trade marks five years after coming to notice of the registration of the company. The respondent No. 2 could not feign ignorance of the registration of the petitioner - company from the year 1995 having regard to the wide and extensive advertisements made by the petitioners. The interpretation of the authority that the period of five years prescribed under the proviso to Section 22, is to be construed from the date the proviso was introduced, would result in introducing words into the section which is impermissible in law. The language used in the proviso clearly indicates that no application shall be entertained by the Central Government five years after the fact of registration of the company coming to the notice of the registered proprietor of the trade mark. Further, as the statutory provision contemplates penal consequences, there was no scope for a liberal construction of the same. On the face of it, the application was barred by limitation. It is contended that the proviso to Section 22(1)(ii) introduced by way of amendment in the year 2000, has retrospective effect and does not have prospective implication and therefore, the prescription of five years has to be construed from the date when the amendment came into force. It is contended that the reasoning of the Regional Director as the amendment has come into force with effect from 13.12.2000, the period of five years specified therein will expire on 12.12.2005 and therefore, application filed by the second respondent was in time is an incorrect view. The well established principle of law on the other hand is that when once the period of limitation prescribed under statute has expired, any subsequent amendment enlarging the period of limitation cannot revive the rights or powers which have already become time-barred. In the case on hand, the application having become time-barred under Section 22(1)(ii)(b), the proviso could not possibly extend or revive the right which had already become time-barred.
The Senior Advocate places reliance on the following authorities in support of his contentions:
1. Sidhvi Constructions (India) Pvt. Ltd. v. Registrar of Companies and Ors. (1997) 90 Comp Cas 299
2. Sen and Pandit Electronics Pvt. Ltd. and Ors. v. Union of India and Ors. AIR 1999 CAL 289
3. Lachhman Das Arora v. Ganeshi Lal and Ors. : 1999 (8) SCC 532
4. Union of India v. Karnataka Electricity Board : ILR 1987 Kar. 2552
5. The Special Land Acquisition Officer UKP Bagalkot v. Malakajayya Mallayya : ILR 1996 KAR 1639
6. S.S. Gadgil v. Lal and Co. : AIR 1965 SC 171
7. Mathukumalli Ramayya and Ors. v. Uppalapati Lakshmayya : AIR 1942 PC 54
8. The Commissioner of Sales-Tax, Uttar Pradesh v. Mangal Sen Shyam Lal : AIR 1975 SC 1106
9. Nalinakhya Bysack v. Shyam S. Haldar and Ors. : AIR 1953 SC 148
10. Kihoto Hollohan v. Zachillhu and Ors. : 1992 Supp. (2) scc 651
11. State of Punjab v. Kailash Nath : (1989) 1 SCC 321
12. Madhu Gopal v. VI Additional District Judge and Ors. (1988)4 SCC 644
13. Association of Certified Public Accounts of Britain v. Secretary of State for Trade and Industry (1997) 2 BCLC 307
14. Law of Trademarks and Passing off by Narayanan - 5th Edition - Page 28
15. Nestle's Products Limited and Ors. v. Milkmade Corporation and Anr. : AIR 1974 Del 40
16. Amritdhara Pharmacy v. Satya Deo Gupta : AIR 1963 SC 449
17. Power Control Appliances and Ors v. Sumeet Machines Private Limited : (1994) 2 SCC 448
18. Bharathiya Coffee Workers Catering Service Private Limited v. Indian Coffee Workers Co-operative Society Limited (1999) (19) PTC 431 (KER)
19. J.R. Kappor v. Micronix India : 1994 SUPPL. (3) SCC 215
20. Vishnudas Trading v. Vishnudas Kishendas v. Vazir Sultan Tobacco Co. Ltd. Hyderabad and Anr. : 1997 (4) SCC 201
21. London Rubber Co. Limited v. Durex Products Incorporated and Anr. AIR 1963 SCC 1882
5. On the other hand, Shri K.G. Raghavan, Senior Advocate, appearing for the Counsel for the respondent while reiterating the stand taken by the respondent in its pleadings contends that the main argument of the petitioner is that the application was barred by limitation. The interpretation canvassed by, die petitioner, is erroneous as the express provision of the starting point of limitation is the date of A coming to know of notice of registration of the company and this cannot be held to mean the date of registration of the subsequent company. If that was the intention, the Legislature would have used the words five years from the date of incorporation. It is pointed out that the object of Section 22 is meant to correct errors in the performance of ministerial functions by the registering authority. Even under the unamended section, the petitioner could never have obtained registration using the name 'Technova' since the second respondent was already registered with the same name. Neither the general public at large nor the second respondent can be penalised or made to suffer only on account of an error on the part of the registering authority. It is this error that is sought to be corrected within the prescribed period of coming to notice of the petitioner-company and therefore, the application was maintainable. The second respondent has placed on record material to show that it learnt of the existence of the petitioner only in the year 2002. Then second respondent has only a representative office at Bangalore and hence, reliance placed on entries in the Bangalore Telephone Directory is of little avail as the second respondent continues to be headquartered 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 -Reflex Auto Products Private Limited. It was only in the year 1995, that the petitioner changed its name as - Technova Tapes India Private Limited. By then, the second respondent had been in existence for 16 years and it was well known through out the country and even abroad. The inadvertent registration of the petitioner, therefore, clearly required to be rectified.
Shri Raghavan would place reliance on the judgment in Government Gujarat Vikas Urja Vikas Nigam Limited v. Essar Power Limited : (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 have included Section 11 of the Arbitration and Conciliation Act, 1996. He places reliance on the following paragraphs in the said judgment in support of the case:
42. In the Mimansa system there are three ways of dealing with conflicts which have been fully discussed by Shabar Swami in his commentary on Sutra 14, Chapter III, Book HI of Jaimini:
(I) Where two texts which are apparently conflicting are capable of being reconciled, then by the principle of harmonious construction (which is called the samanjasya principle in Mimansa) they should be reconciled. The samanjasya principle has been laid down by Jaimini in Chapter II, Sutra 9 which states:
The inconsistencies asserted are not actually found. The conflicts consist in difference of application. The real intention is not affected by application. Therefore, there is consistency.
xx xx xx47.One of the Mimansa principles is the gunapradhan axiom, and since we are utlising it in this judgment (apart from the badha and samanjasya principles) we may describe it in some detail.
48. 'Guna' means subordinate or accessory, while 'pradhan' means principle. The gunapradhan axiom states:
If a word or sentence purporting to express a subordinate idea clashes with the principal idea the former must be adjusted to the latter or must be disregarding altogether.
This principle is also expressed by the popular maxim known as matsya nyaya i.e., 'the bigger fish eats the smaller fish'
49. According to Jaimini, acts are of two kind, principal and subordinate (see Jaimini 2:1:6). In Sutra 3:3:9 Jaimini states:
Kumarila Bhatta, in his Tantravartika (See Ganganatha Jha's English translation, Volume 3, p 114]) explains this sutra as follows:
When the primary and the accessory belong to two different vedas, the vedic characteristics of the accessory is determined by the primary, as the accessory is subservient to the purpose of the primary.
xx xx xx51. In our opinion the gunapradhan axiom applies to this case. Section 174 is the pradhan whereas Section 175 is the guna (or subordinate). If we read Section 175 in isolation then of course we would have to agree to Mr.Nariman's submission that Section 11 of the Arbitration and Conciliation Act, 1996 applies. But we cannot read Section 175 in isolation, we have to read it along with Section 174, and reading them together, we have to adjust Section 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 statue 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, presumably 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 giving an unusual meaning to particular words, by altering their collocation, by rejecting them altogether, or by interpolating other words, under the influence, no doubt, of an irresistible conviction that the legislature could not possibly have intended what its words signify, and that the modifications thus made are mere corrections of careless language and really give the true meaning.54. Thus, in Surjit Singh Kalra. v. Union of India this Court has observed that sometimes Court can supply words which have been accidentally omitted.
55. In G.P. Singh's Principles of Statutory Interpretation, 9th Edn.,2004 at pp. 71-74 several decisions of this Court and foreign courts have been referred to where the Court has added words to a statue (though cautioning that normally this should not be done).
56. Hence we have to add the aforementioned words at the end of Section 175 otherwise there will be an irreconcilable conflict between Section 174 and Section 175.
Shri Raghavan would hence submit that in the light of the above interpretation the petition be dismissed.
6. In the above background, the point that would arise for consideration by this Court is, whether an application under Section 22 of the Companies Act, 1956, as amended by the Trade Marks Act, 1999, in terms of Section 158 and the Schedule thereto of the Trades Marks Act, 1999, was maintainable, at the instance of the second respondent there in before the first respondent against the petitioner.
It is seen that the second respondent was registered as a company in the year 1979 in the name of - 'Technova Plate Making Systems'. It was subsequently changed to 'Technova Imaging Systems Private Limited' in 1993. However, the word 'Technova' was part of its corporate identity since 1979. The petitioner on the other hand has been incorporated on 7.2.1986 in the name of 'Reflex Auto Products Private Limited'. And since the year 1995, the petitioner has changed its name as 'Technova Tapes (India) Private Limited'. The second respondent has filed an application before the Regional Director, Ministry of Company Affairs, Chennai, as on 6.1.2004, seeking directions under Section 22 of the Act. The petitioner had contested the application before the said authority and it was sought to be highlighted that the amendment brought to Section 22 of the Companies Act, 1956, by the Trade Marks Act, 1999, the petitioner had been using the name 'Technova Tapes India Private Limited' 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 and Co. : AIR 1965 SC 171).
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
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 resolution and with the previous approval of the Central Government signified in writing, change its name or new name; and
(b) shall, if the Central Government so directs within twelve months of its first registration or registration by its new name, as the case may be, or within twelve months of the commencement of this Act, whichever is later, by ordinary resolution and with the previous approval of the Central Government signified in writing, change its name or new name within a period of three months from the date of the direction or such longer period as the Central Government may think fit to allow.
(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 hundred rupees for every day during which the default continues.
Amended Section 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,
(i) 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, or
(ii) on an application by a registered proprietor of a trade mark, is in the opinion of the Central Government identical with, or too nearly resembles, a registered trade mark of such proprietor under the Trade Marks-Act, 1999, such company,
(a) may, by ordinary resolution and with the previous approval of the Central Government signified in writing, change its name or new name; and
(b) shall, if the Central Government so directs within twelve months of its first registration or registration by its new name, as the case may be, or within twelve months of the commencement of this Act, whichever is later, by ordinary resolution and with the previous approval of the Central Government signified in writing, change its name or new name within a period of three months from the date of the direction or such longer period as the Central Government may think fit to allow.
[Provided that no application under Clause (ii) made by a registered proprietor of a trade mark after five years of coming to notice of registration 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.
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 .
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 admittedly had filed the application on 6.1.2004, well beyond five years after the petitioner had changed its name as Technova Tapes (India) Private Limited. The first respondent has accepted the contention of the second respondent that time would begin to run in computing the period of five years from the date of incorporation of the amendment, namely, the proviso to Section 22 which has come into force with effect from 13.12.2000, in terms of the Companies Amendment Act, 2000 and therefore, the period of five years would expire on or before 12.12.2005 and hence, the application was within time. The authority has accepted the contention of the second respondent that the name of the petitioner is identical with and resembles the name of the second respondent and has issued the direction by the impugned order.
The language of the Section is certainly found wanting in clarity. If the section is construed, on a plain reading, that the Central Government or such other competent authority is empowered to direct rectification of the name of a company which is identical with or resembles the name of a company which is already in existence, within twelve months of the registration of such company. The proviso affording a registered proprietor of a trade mark five years time, after coming to its notice of a registered company, with an identical or nearly resembling its own registered trade mark, while there is no corresponding enabling power or jurisdiction afforded to entertain an application by the competent authority or the Central Government in the section, it is only to be implied, this is an apparent incongruity. But in order to avoid rendering the provision nugatory, where it seeks to protect the interest of a registered proprietor of a trade mark, the section would necessarily have to be given the interpretation suggested by respondent No. 2 herein, namely, that under the unamended section, the limitation of one year was prescribed for applications by a registered company. The proviso however makes a separate provision for the new category of applicants namely, the holders of registered trade marks and for such applicants, the period of five years would run from the date when the applicant who is the registered trade mark holder came to know of the existence of the company with a similar name and the limitation of one year for the authority 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.
7. 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 there from. 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.
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 marks'. This would be the position on principle as applied in S.S. Gadgil v. Lal and Co. : AIR 1965 SC 171 and Mathukumalli Ramayya and Ors. v. Uppalapati Lakshmayya : AIR (29) 1942 Privy Council 54. In construing the period of limitation extended by the amendment and the rights and interest of the parties, the dispute as to whether the second respondent should be presumed to have known of the existence of the petitioner much earlier to the date of the application, and this circumstance necessarily requiring an adjudication as to a finding of fact of the same is a case in point as to the uncertainties that have to be accommodated in permitting the period of limitation to be enlarged in favour of the second respondent in the facts and circumstances of the present case.
The contentions of the respondent that the petitioner had made attempts to seek registration of trade marks with the word - 'Technova' in the year 1989 and that the respondent learnt about it in or about the year 2002, and had filed objections to the grant of such trade marks, etc., would also indicate that there is no certainty that the second respondent was unaware of the petitioner's existence and therefore, the 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.