Pramod Chandak Vs. Union of India and ors. - Court Judgment

Excerpt:

.....case the respondents) marks are an imitation of the mark of another to wit that the respondents had themselves infringed the mark of another. it is thus clear that the principle was applied to an action for infringement of trade mark and passing off. if the purchasers were in such a case to stamp their goods with the trade mark, "a.b. the basis of the ratio is to deny an infringer a right based on the mark or work which infringes the mark or work of another. the respondents in their affidavit in rejoinder denied the allegations that they had infringed the mark of state express 555. there are no averments, much less is there any evidence, to indicate that the respondents' marks/cartons/labels are an imitation of the mark state express 555. it is significant to note that there is no evidence whatsoever to the effect that the third party has used the mark 555 or created the labels/cartons or marks prior to the creation of and use by the respondents of these marks/labels and cartons which may have persuaded the court to come to the conclusion that the respondents had infringed the mark. if it is established that the mark is a well known mark, the mark being used in respect of..........before the company law board and that, if necessary, the board may pass an order for investigation in exercise of power under s.402 of the companies act, 1956. 6. section 235 of the companies act, 1956 does not empower the registrar to make any investigation into the affairs of a company on the basis of an application or representation submitted by an owner of shares in the company. the petitioner did not have any statutory right to call upon the registrar to make an investigation into the affairs of the company. 7. but the petitioner, if he fulfilled the requirement stated in sub-s.(2) of s.235, was entitled to apply to the company law board for an order directing investigation into the affairs of the company by an inspector or inspectors appointed by the central government. an investigation into the affairs of a company can be made only by an inspector or inspectors appointed by the central government for the purpose and not by the registrar. hence i am of the view that by ignoring the petitioners representation the registrar did not commit any wrong. the petitioner is not entitled to any relief from the writ court. 8. for these reasons, the petition is dismissed. no costs......

Judgment:

1. The Court:- The petitioner in this art.226 petition dated October 4, 2009 (sic) is seeking the following principal reliefs: -

(b) A Writ of and/or in the nature of Mandamus do issue commanding the Respondent and each of them and their men, servants and agents to forthwith reject Form-32 referred to in the petition.

(c) A Writ of and/or in the nature of Mandamus do issue commanding the Respondent and each of them and their men, servants and agents to declare that the persons nominated in paragraph 10 of the petition are the only members of the Board of Directors of the Respondent No.4 company to the exclusion of all others.

2. Counsel submits that actually the petitioner, an owner of shares in Texrose Yarns Pvt Ltd (the fourth respondent), is alleging inaction on the part of the Registrar in that the Registrar has not made any investigation under the Companies Act, 1956 on the basis of the petitioners representation wherein the petitioner alleged mismanagement.

3. Mr Sen, counsel for the last four respondents (the company and its three directors), submits that this is a misconceived petition. He has said that alleging mismanagement the petitioner, as an owner of shares in the company, has filed an application under ss.397 and 398 of the Companies Act, 1956 and that the application is pending before the Company Law Board.

4. The question is whether the petitioner is entitled to allege inaction on the part of the Registrar.

5. It is not disputed that the petitioners application under ss.397 and 398 of the Companies Act, 1956 is pending before the Company Law Board and that, if necessary, the Board may pass an order for investigation in exercise of power under s.402 of the Companies Act, 1956.

6. Section 235 of the Companies Act, 1956 does not empower the Registrar to make any investigation into the affairs of a company on the basis of an application or representation submitted by an owner of shares in the company. The petitioner did not have any statutory right to call upon the Registrar to make an investigation into the affairs of the company.

7. But the petitioner, if he fulfilled the requirement stated in sub-s.(2) of s.235, was entitled to apply to the Company Law Board for an order directing investigation into the affairs of the company by an inspector or inspectors appointed by the Central Government. An investigation into the affairs of a company can be made only by an inspector or inspectors appointed by the Central Government for the purpose and not by the Registrar. Hence I am of the view that by ignoring the petitioners representation the Registrar did not commit any wrong. The petitioner is not entitled to any relief from the Writ Court.

8. For these reasons, the petition is dismissed. No costs. Certified xerox.