K.A. Puj, J.

1. The petitioner has filed this petition under Article 226 of the Constitution of India challenging the order dated 18th December, 2002 passed by the Regional Director ( Western Region), Mumbai, rejecting the petitioners application seeking direction under Section 22 of the Companies Act, 1956 for change of name of another Company i.e. M/s. Pino Bisazza Glass Private Limited as the name of the respondent No. 1 Company was considered to be nearly resembling with the name of the petitioner Company.

2. This Court has issued notice dated 21st April, 2003. Thereafter, on 28th April, 2004, the petition was admitted by this Court and rule was issued. Affidavit-in-reply is filed on behalf of the respondent No. 2 on 18th August, 2004 and affidavit-in-reply is filed by the respondent No. 1 Company on 23rd December, 2005. The petitioner has filed the rejoinder to both the affidavits-in-reply on 13th February, 2006. Since the petition is ripe for final hearing, the same is taken up for hearing and the learned advocates appearing on behalf of all the parties were heard at great length on the dispute between the parties.

3. The brief facts giving rise to the present petition are that the petitioner Company is incorporated under the Companies Act, 1956 and commenced its business of manufacturing and selling glass mosaic tiles, glass tiles, marble tiles and building materials. The petitioner has a technical collaboration with Bisazza SPA, Italy by virtue of which the petitioner was allowed to use the name of Bisazza for the goods to be manufacturing by the petitioner. The said Bisazza SPA, Italy is one of the world leaders in these goods. The petitioner applied for registration of trade mark Bisazza in February, 1996 before the Registrar of Trade Marks and the said application is still pending.

3.1 The petitioner in April, 2000 came to know that the respondent No. 1 Company was registered under the Companies Act, 1956 by name Pino Bisazza Glass Private Limited vide Registration Certificate dated 8th March, 2000. The respondent No. 1 Company was set up with the same object of manufacturing and selling similar products to that of the petitioner. The petitioner, therefore, applied to the respondent No. 2 i.e. The Regional Director, Western Region, Mumbai for cancellation of the registration of respondent No. 1, in May, 2000 under Sections 20 and 22 of the Companies Act, 1956. Since the said application was not being heard, the petitioner filed Special Civil Application No. 9106 of 2000 before this Court. The said petition was disposed of by this Court on 28th August, 2000 giving direction to the respondent No. 2 that the application of the petitioner should be heard as expeditiously as possible and preferably within 15 days from the date of receipt of a certified copy of the order. The then Regional Director, Western Region passed an order on 26th September, 2000 directing the respondent No. 1 Company to change its name within a period of three months from the date of the order under Section 22(1) of the Companies Act r/w. Notification No. GSR-288(E) dated 31st May, 1991, of the Government of India.

3.2 Being aggrieved by the said order of the then Regional Director, Western Region, the respondent No. 1 filed Special Civil Application No. 13009 of 2000 before this Court which was allowed by this Court vide its order dated 1st April, 2002 only on the ground that the same did not record reasons for passing final order with further clarification that it would be open to the respondent No. 1 to move the respondent No. 2 for reconsidering the matter afresh after giving opportunity of hearing to the petitioner. Pursuant to this direction, the respondent No. 2 passed an order on 18th December, 2002 rejecting the petitioners application for cancellation of the name of the respondent No. 1 Company as Pino Bisazza Glass Private Limited.

4. It is this order which is under challenge in the present petition.

5. Mr. S.N. Soparkar, learned senior advocate appearing with Mr. Amar N. Bhatt, learned advocate for the petitioner has submitted that there is no justification on the part of the respondent No. 2 in holding that there is no too near resemblance between the names of the petitioner and respondent No. 1. In coming to this conclusion, the respondent No. 2 failed to consider various guidelines and circulars issued by the Department of Company Affairs, Government of India. He has made a reference of one specific circular which consists of a table showing cases where proposed names of companies would be considered to be too nearly resembling the name of existing companies. This table reads as under:

Proposed Name Existing Company too nearly

resembling name.

1. Hindustan Motor Hindustan Motor Limited.

and General

Finance Company.

2. The National Steel National Steel Works.

Mfg. Co. Private

Limited.

3. Trade Corporation State Trading

of India Limited. Corporation of India Limited.

4. Viswakarma Viswakarma Engineer

Engineering Works (India) Private Limited.

Private Limited.



5. General Industrial General Financial &

Financing & Trading Trading Corporation.

Co. Ltd.

6. India Land & Northern India Land &

Finance Limited. Finance Limited.

7. United News of United Newspapers

India Limited. Limited.

8. Hindustan Hindustan Fertilizers

Chemicals and Limited.

Fertilizer

Limited.



Based on the above guidelines and circulars, Mr. Soparkar has submitted that the petitioner Companys name is Bisazza India Limited and the name of the respondent No. 1 Company is Pino Bisazza Glass Private Limited. The word Bisazza is common in both the parties and hence, the name of the respondent No. 1 should be considered to be too nearly resembling the name of the petitioner Company.

6. Mr. Soparkar has further submitted that the respondent No. 2 has not assigned any cogent reason for his conclusion that the name of the respondent No. 2 does not nearly resemble the name of the petitioner. He has further submitted that the respondent No. 2 has passed the impugned order without affording any opportunity to the petitioner to rebut the evidence produced by the respondent No. 1 Company after concluding the hearing on 20th November, 2002. He has further submitted that while passing the impugned order, the respondent No. 2 has not interpreted the provisions contained under Sections 20 and 22 of the Companies Act properly and correctly. He has further submitted that the respondent No. 1 Company in choosing the name in question is not bona fide and that respondent No. 1 was trying to take advantage of the word Bizazza which is synonymous for glass mosaic tiles and other similar products and has a long standing world wide reputation which the petitioner has been permitted to use by virtue of technical collaboration with Bisazza SPA, Italy.

7. Mr. Soparkar has submitted that the respondent No. 2 has committed a grave error of law in arriving at the conclusion that only the registered proprietor of the trademark can seek directions under Section 22(ii) of the Companies Act, 1956 and, therefore, the petitioner cannot seek the direction under Section 22(ii) of the Companies Act, 1956. He has further submitted that allowing the respondent No. 1 to continue its present name would create misunderstanding in the trade and market as well as in the minds of the customers and, therefore, it is not desirable to allow the respondent No. 1 to continue its name by registering Pino Bisazza Glass Private Limited.

8. In support of his submission, Mr. Soparkar has relied upon the decision of this Court in case of P.M. Diesels Limited v. Union of India and Ors. in Special Civil Application No. 6961 of 1992 decided on 15th December, 2005 wherein the petition filed by one M/s. P. Diesels Limited was allowed and the communication / decision of the Registrar of Companies (Gujarat, impugned therein, granting registration to the respondent No. 4 with effect from 29th June, 1989 in the name and style of Marshal Pumps Private Limited was quashed and set aside. Mr. Soparkar has further relied on the decision of this Court in case of Bhavnesh Mohanlal Amin v. Nirma Chemical Works Limited reported in 2005 (2) GLH 585 wherein it is held that it is not in dispute that the mark NIMA was registered in the year 1982 and the products with the said mark were marketed in the year 1998-1999. Since the said mark was registered, any resemblance to the said mark shall amount to infringement of the right given by registration and may attract an action of passing off. Once the trade mark is registered, legal protection is available to the proprietor of such registered trade mark and the user of the mark is not the conditional requirement of such protection. Mr. Soparkar has, therefore, submitted that criteria laid down under the Trade and Merchandise Marks Act, 1958 for an infringement of trade mark and passing off action under the Trade and Merchandise Marks Act as well as as an action for cancellation of a registration having too resemblance of a name with the name of an existing company are same and hence the order passed by the respondent No. 2 deserves to be quashed and set aside.

9. Mr. Ashok L. Shah, learned advocate appearing on behalf of the respondent No. 1 Company, on the other hand, has submitted that the word Bisazza has not become synonymous for glass mosaic tiles, ceramic tiles, glass tiles, etc. as claimed by the petitioner. The word Bisazza is a very common surname in Italy just as Shah or Patel are in Gujarat, India. He has further submitted that there is no dispute as regards the legal position under Section 20 of the Companies Act, 1956, i.e. no Company shall be registered by a name which, in the opinion of the Central Government, is undesirable and that a name which is identical with, or too nearly resembles the name of by which a Company in existence has been previously registered may be deemed to be undesirable by the Central Government under the provisions of Section 20 of the Companies Act, 1956. The real issue involved in the present petition is whether the name of the respondent No. 1 Company is identical with or too nearly resembles the name of the petitioner Company. He has further submitted that the name of the respondent Company is definitely not identical with the petitioner Companys name. The next question that is to be examined is whether the name of the respondent Company too nearly resembles the name of the petitioner Company. He has further submitted that the name of the respondent Company does not resemble much less too nearly resembles the name of the petitioner Company. He has further submitted that the word Bisazza is not coined by the petitioner. It is settled law that nobody can own a proprietary right in a common name or common surname, particularly, as against a person having the same name or surname. In the name of the respondent company Pino Bisazza is the name of the Chief Promoter of the respondent Company. Pino being his first name and Bisazza being his surname and hence, there is no provision of any law under which he can be prevented from using his name and surname Pino Bisazza for his business.

10. Mr. Shah has further submitted that when the respondent No. 1 Company made an application in Form No. 1A to the Registrar of Companies, Ahmedabad, for availability of name, a letter was addressed to the Registrar of companies along with the said Form and it was clearly pointed out in the said letter as the words Pino Bisazza mentioned in the proposed name applied for represented the name of the person who will be the main person in the Company and who would be inducted on the Board of Directors of the Company on incorporation and after obtaining necessary approval of the Reserve Bank of India and the Government.

11. Mr. Shah has further submitted that the respondent No. 1 CompnayPino Bisazza Glass Private Limited was to be a joint venture between Indian investors and Italian Investors. The main Italian investor is Mr. Pino Bisazza. For the said purpose, Mr. Pino Bisazza formed a company by the name M/s. Trend Group STA. The said Italian Company holds 67% of the issued and paid up capital of the respondent Company and is thus controlled by Mr. Pino Bisazza. For the investment to the extent of 67% to be made by Mr. Pino Bisazza through his Italian Company was initially required to be approved by the Central Government. However, with the liberalised policy of foreign investment published vide Notification Policy of 215/2000-RB dated 22nd March, 2000, no such permission or approval was required from the Central Government. The respondent Company also approached the Reserve Bank of India for granting its approval to the appointment of Mr. Pino Bisazza as a Director on the Board of Directors of the respondent Company. The respondent No. 1 was advised by the Reserve Bank of India that no such permission or approval is required for the appointment of Mr. Pino Bisazza as a Director on the Board of Directors of the respondent No. 1 Company, particularly when he is not going to get any remuneration from the respondent No. 1 Company in foreign currency. He has, therefore, submitted that all these formalities and clarification took some time and ultimately Mr. Pino Bisazza, who could not be appointed as a Director of the respondent Company, soon on incorporation of the respondent Company was appointed as a Director on the respondent Companys Board of Directors after getting the above clarifications.

12. Mr. Shah has further submitted that the petitioners name and the respondent Companys names are quite distinct from each other and do not resemble each other. Moreover, the respondent company has, in fact, taken care to see that Mr. Pino Bisazza carries on business on his own reputation and, therefore, uses his full name and surname in the name of his Company. Moreover, the respondent Companys name also does not include the word India which is found in the name of the petitioner. The respondent Companys name includes an additional word Glass which is not found in the name of the petitioner Company. Except the word Bisazza which is a very common surname in Italy, there is no single word common between the names of the petitioner and the respondent Company. The name of the respondent Company does not, thus, resemble the name of the petitioner. Moreover, what Section 20 requires for a name to be undesirable is not that a name shall not resemble the name of the earlier registered Company. What it requires is that it shall not too nearly resemble the name of earlier registered company. Merely because there is one single word common in the names of two Companies particularly when the names contain several more distinctive distinguishing words, they cannot be said to be resembling, much less, too nearly resembling each other. Mr. Shah has further derived supports for his submission from the various illustrations given in the guidelines. In all the said illustrations, there are at least two common words as distinguished in two respective compared names. The two common words in the pairs of names are highlighted in bold underlined words in the table given in para-5 above.

Based on the above submissions, Mr. Shah has submitted that except the word Bisazza, there is no common word between the names of the petitioner and the respondent Company. There cannot be any proprietary right in the word Bisazza which is a word of a common surname in Italy. Moreover, the name of the respondent Company contains several distinguishing features, namely, it contains the name Pino which is the name of the Chief Promoter of the respondent Company and has his own surname Bisazza and is known world over as Pino Bisazza. Moreover, the respondent Companys name also includes the word Glass which is missing in the petitioners name. The petitioners name contains the word India which is absent in the name of the respondent Company. Thus, except the word Bisazza, there is no other common word between the two names. The illustrations given by the Department of Company Affairs and quoted by the petitioner, on the contrary, support the case of the respondent Company inasmuch as all the illustrations contain two or more common words in the compared names. There is not a single illustration which contains just one common word. All the illustrations given by the Department of Company Affairs contain two or more common words for making the name of the subsequently registered Companys name to be too nearly resembling the name of the existing Company. He has, therefore, submitted that the names of the petitioner and the respondent Company are definitely not identical with each other and the name of the respondent Company is also not resembling, much less too nearly resembling, the name of the petitioner Company.

13. Mr. Shah has further submitted that Mr. Pino Bisazza, the Chief Promoter of the respondent Company, has a worldwide reputation and has been very well known in the business. He heads a large number of Companies / Business organisations and is being acclaimed as a leader in his field. The respondent Company has taken extra care to see that it thrives on its own reputation and on the reputation of its own Chief Promoter, Mr. Pino Bisazza. By attempting to prevent the respondent Company from using the words Pino Bisazza, the petitioner is trying to prevent Mr. Pino Bisazza from carrying on business in his own name and on his own reputation. There is no resemblance, much less too near resemblance, between the names of the petitioner and the respondent Company and there is no dishonest or mala fide intention on the part of the respondent Company in using its existing name. No confusion or misunderstanding is likely to be caused amongst the trade circles or common man dealing with the respective Companies.

14. Apart from the submissions on merits Mr. Shah has raised one more interesting issue for Courts consideration. He has further submitted that respondent No. 2 has erred when he failed to hold that no order can be passed under Section 22 of the Companies Act after the period of twelve months from the date of registration of the new Company. The Central Government cannot exercise the power under Section 22 of the Companies Act, after the period of twelve months from the date of registration of the respondent Company. There is no provisions anywhere for extension of statutory period of twelve months and hence the Court can not extend the same under its writ jurisdiction. The respondent No. 2 should not have passed the impugned order even as per the direction of the Court. The Court cannot issue such directions under its writ jurisdiction which are contrary to the provisions of law. The power of the Central Government under Section 22 of the Act can be exercised only within a period of twelve months from the date of registration of the new Company and this period cannot be extended by any Court. The respondent Company was registered with its present name on 8th March, 2000 and hence the power under Section 22 of the Companies Act can be exercised by the Central Government within twelve months i.e. on or before 8th March, 2001. The impugned order is passed by the respondent No. 2 on 18th December, 2002 which is beyond the statutory period and hence, even on this ground, the name of the respondent No. 1 Company is not liable to be changed.

15. In support of the above submissions, Mr. Shah has relied upon observations made in Buckleys Companies Act. While considering the provisions contained in Section 18 of the Companies Act, 1948 it is observed by learned Author that the Board must give its direction within six months of the registration of the offending name. The Board can compel a change of name only if the offending name is too like the name of an existing company and not upon any other ground upon which it could have refused registration in the first instance. Even the learned Author Ramaiya in his guide to Companies Act has observed that the power must be exercised within twelve months of registration of a new company or changed name of an existing company. After twelve months the Central Government cannot exercise the powers and ordinary procedure for alteration of name would have to be followed. The aggrieved company may resort to civil proceedings to compel change of the name. It is further observed that there is no provision anywhere for an extension of this period of twelve months and the court cannot be called upon to extend it by resorting to the writ of mandamus. In the case of Sidhvi Constructions (India) P. Ltd v. ROC, Hyderabad reported in : (1997) 90 Com Cases 299 (A.P.) the Andhra Pradesh High Court has held that it is not open to the registering authority to register a company with a name similar to that of an existing company and if it resembles it closely, such names should be avoided. However, the Registrar, while registering a company, at the initial stage need not make a through investigation. If such an issue is brought before the Registrar of companies within the time stipulated under Section 22 of the Act, it is open to the Central Government to direct the later company to change its name. When the limitation prescribed by the statute had expired, it would not be open for the court to extend the same by exercising powers under Article 226 of the Constitution of India. The court cannot compel the registering authority to pass orders in violation of statutory provisions which have the effect of extending the period of limitation under the Act. In the case of Hope Textiles P. Ltd. v. Union of India reported in : 1995 Supp. (3) SCC 199 Apex Court had held that a writ of mandamus can be issued to a statutory authority to compel it to perform its statutory obligation. It cannot issue to compel him to pass an order in violation of a statutory provision. The Income Tax Officer had no power to make a reassessment beyond the period prescribed by Sub-section (2), unless the case fell under any of the other Sub-sections under Section 153 or other provision extending the said period of limitation.

16. Mr. Shah has further relied upon the decision of the Bombay High Court, in the case of MRC Logistics Private Limited v. Regional Director Western Region reported in : (2009) 151 Comp. Cases 466 (Bom.) wherein it is held that it is well settled principle that under Section 22(1)(i) of the Act the Central Government can exercise the powers suo motu or at the instance of an aggrieved party. The powers to be exercised by the Central Government in either of these two events have to be in conformity with the provisions of Clause (b) of Section 22(1) of the Act. The Government can issue a direction to the subsequently registered company within 12 months of its first registration or registration by a new name. Once that period lapses the Government loses its authority to issue such a direction. The intention of the Legislature is to restrict or control the powers of the Central Government and not to provide limitation for filing an application. It is an embargo on exercise of the powers and not remedy as such. The powers under Section 22 are discretionary powers, which, as already noticed, can be exercised suo motu or on an application filed by an aggrieved person. Section 22 does not in any way interfere or bar the remedies available under different Acts including initiation of any action or passing off action under the Trade and Merchandise Act. The powers are to be exercised in accordance with the principles of natural justice and as per the procedure stated under the Act. It is further held that the period of 12 months is, therefore, essence of invocation of powers in terms of Section 22 vested in the appropriate Government. AS far as Section 22(1)(ii) is concerned, said provisions are not attracted in the facts of the present case.

17. Based on the above submissions Mr. Shah has strongly urged that not only on the merits of the matter but even on ground of limitation, the Central Government has no authority to direct the respondent No. 1 Company to change its name or to cancel the registration of its existing name.

18. Since issue regarding limitation was raised in the affidavit-in-reply as well as in the course of arguments, Mr. Soparkar in rejoinder has submitted that interpretation under Section 22 put forward by the respondent No. 1 Company is not correct. He has further submitted that the Court, in exercise of its power under Article 226 of the Constitution of India can call upon the authority to pass an appropriate order under Section 22 of the Companies Act, 1956. The order passed by this Court issuing direction to the respondent No. 1 to pass afresh order after considering the fact, cannot be said to be contrary to law. He has further submitted that when this Court has issued the direction while disposing of the earlier petition filed by the respondent No. 1 Company the period of limitation would not apply. The Regional Director has no authority to pass the order contrary to the direction issued by this Court. The earlier order passed by the Regional Director was quashed and set aside with further clarification that it would be open to the respondent No. 1 to move the respondent No. 2 for reconsideration of the matter afresh after giving opportunity of hearing to the petitioner and it will also be open for the respondent No. 2 to record reasons in passing the order and then pass final order under Section 22 of the Companies Act, 1956. He has further submitted that there is specific direction to pass an order under Section 22 of the Companies Act. This order has become final and it has not been challenged by the respondent No. 1 and hence, it is binding between the parties. In support of his submission, Mr. Soparkar has relied upon the decision of the Division Bench of this Court in the case of Ashokbhai Vallabhbhai Gol v. Union of India decided on 30th July, 2009 wherein it is held that the period of limitation is a defence available to the respondent and by not challenging the decision of Coordinated Bench the respondent can be said to have acquiesced to the observations made permitting the petitioner to challenge the order-in-original before this Court, irrespective of limitation and, therefore, in peculiar circumstances, the Court was of the view that the objection as to maintainability and question of limitation cannot be accepted against the petitioner. He has, therefore, submitted that both on merits as well as on the issue of limitation, the petition deserves to be allowed.

19. Mr. S.C. Patel, learned Standing Counsel appearing on behalf of the respondent No. 2 has virtually adopted the submissions of Mr. Shah so far as the merits of the matter is concerned and he has also relied on the affidavit-in-reply filed by the Regional Director. He has further submitted that the petition deserves to be dismissed.

20. Having heard learned advocates for the parties and having considered the rival submissions in light of the statutory provisions contained in Sections 20 and 22 of the Companies Act, 1956 as well as in light of the case law on the subject, the Court is of the view that the order passed by the Regional Director (Western Region), Mumbai rejecting the petitioners application seeking direction under Section 22 of the Companies Act, 1956 for change of name of the respondent No. 1 Company does not call for any interference, while exercising the writ jurisdiction of this Court under Article 226 of the Constitution of India. Basically, two issues are involved in this petition. Firstly, the question is whether the Regional Director is justified in arriving at the conclusion that the name of the respondent No. 1 Company does not seem to be too nearly resembling with the name of the petitioner Company and secondly, whether the Regional Director is justified in passing the order under Section 22 of the Companies Act, despite the fact that the period of twelve months was already over on the date when he has passed such order. The first issue is decided against the petitioner Company and in favour of the respondent No. 1 and hence, the petitioner - Company is before this Court in the present petition. Though the second issue is decided against the respondent No. 1 Company, the learned advocate Mr. Shah has made an attempt to support the order passed by the respondent No. 2 even on the ground of limitation, considering the provision contained in Section 22 of the Companies Act.

21. The Court has considered the detailed submissions made by the parties. There are two Companies before the Court one is Bisazza Indian Limited, the petitioner herein and other one is M/s.Pino Bisazza Glass Private Limited, the respondent No. 1 herein. The Court has to consider as to whether there is any similarity in the name of these two Companies or whether the name of the respondent No. 1 Company is too nearly resembling with the name of the petitioner Company. On the face of it, there does not seem to be any similarity between these two names. The only question, therefore, remains is to decide as to whether the name of one Company appears to be too nearly resembling with the name of another Company. In the name of the petitioner Company, there are three words namely Bisazza India Limited whereas in the name of respondent No. 1 - Company, there are four words namely Pino Bisazza Glass P. Limited. The only word common in both these names is Bisazza. It has come on record that the word Bisazza indicates the Surname in Italy. The Surname remains Surname whether in Italy or in India or anywhere else. This word is not coined by the petitioner. No one can claim any monopoly over this word. The respondent No. 1 Company has not merely used the word Bisazza but it has also used the word Pino. Pino is the name of Chief Promoter of the respondent No. 1 Company and Bisazza is his Surname. The Company of Mr. Pino Bisazza is having 67% interest in the respondent No. 1 Company. He is having his own reputation and after his name, the respondent No. 1 Company is known as M/s.Pino Bisazza Glass Private Limited. If the Court considers the resembling features in these two names, except the word Bisazza there are no other resembling features. The word India is not there in the name of the respondent No. 1 Company. The word Pino is also not there in the name of the petitioner Company. The word Glass is not in the name of the petitioner Company. Thus, there are distinguished features in the names of the petitioner Company and the respondent No. 1 Company and it cannot be said that the name of the respondent No. 1 Company appears to be too nearly resembling with the name of the petitioner Company. Even the guidelines issued by the Company Law Board in the form of circular referred to hereinabove and instances quoted therein are also of no assistance to the petitioner as admittedly in those instances two words are common in the proposed name as well as in the existing company having too nearly resembling name. No two words are common in the name of the petitioner Company as well as in the name of the respondent No. 1 Company. The support derived by the petitioner from the decisions rendered by the Courts in relation to the Trade Marks Act are of no relevance. So far as the question arising under the Companies Act is concerned,, a special reference to the provisions contained in Sections 20 and 22 of the Act in required to be made. The parameters are different. The criterias are different. Even if an action of infringement or passing off action may lie under the Trade Marks Act, but such action may not be sustainable under the Companies Act. The Court while considering the question under the Companies Act, will have to be satisfied that the name of one Company is similar or too nearly resembling with the name of the another Company. First of all, it is the satisfaction of the Regional Director and the Regional Director, on being satisfied, will take an appropriate action by invoking the provision of Section 20 of the Act. If the decision of the Regional Director is challenged by the aggrieved party, the Court will decide this issue within the parameters of Sections 20 and 22 of the Companies Act. Taking any view of the matter, it cannot be said that the name of the respondent No. 1 - Company is too nearly resembling with the name of the petitioner Company. The challenge to the order of the Regional Director on this ground, therefore, fails.

22. The judgment of this Court in Special Civil Application No. 6961 of 1992 in case of P.M. Diesels Limited v. Union of India decided on 15th December, 2005, is of no relevance to the facts of the present case. In that case, the court has considered the grant of registration by the Registrar of Companies without considering the objections submitted by the petitioner and / or without giving any opportunity to the petitioner. The Court, therefore, on that ground alone quashed and set aside the order passed by the Registrar of Companies (Gujarat) registering the Company under the name and style of S. Marshal Pumps Pvt. Ltd. While quashing the said order, the Court has directed that it would be open for the Registrar of Companies (Gujarat) to take an appropriate decision registering the Company under the name and style of S. Marshal Pumps Pvt. Ltd and / or any other Company having name of S. Marshal and / or Fieldmarshal after considering objections submitted by the petitioner.

23. So far as the second issue regarding limitation is concerned, the respondent No. 1 raised this issue even before the Regional Director. While considering this issue, the Regional Director has observed that it is true that the period of one year has expired from the date of incorporation of the respondent company. Even on the date of order dated 1st April, 2002 passed by the High Court directing the Regional Director to pass final order after giving reasons the period of one year had expired. The respondent Company has not taken the point of limitation at the time of order passed by this Court. This Court has not fixed any time limit on the Regional Director to pass order under Section 22 of the Companies Act. Moreover, the Regional Director had issued directions under Section 22 of the Companies Act on 26th September, 2000 to change the name of the respondent company within one year period of limitation. At the instance of the respondent Company, this Court directed the Regional Director to pass final order after hearing the parties and after giving reasons. The Regional Director has to act in terms of High Court order dated 1st April, 2002 and as such the Regional Director has power to pass order under Section 22 of the Companies Act, even after the expiry of the period of one year. Thus, objection of the respondent company on the point of limitation was rejected by the Regional Director.

24. Though the submissions made by Mr. Shah, learned advocate appearing for the respondent No. 1 Company are based on the literal interpretation of the provisions of Sections 20 and 22 of the Companies Act and that interpretation is also supported by the observations made by Buckley and Ramaiya in their books and it is also supported by the decisions of the Andhra Pradesh High Court as well as the Apex Court as indicated above. Even the Bombay High Court has also taken the same view and facts are more or less similar to the facts of the present case. However, only the distinguishing features in the Bombay case as well as the present case is that in Bombay case, the initial order passed by the Regional Director was quashed and set aside with the consent of the parties and the matter was remitted back for consideration afresh. The Bombay High Court has also granted three months time to decide the matter in accordance with law. However, when a fresh order was passed, the statutory time limit prescribed under Section 22(1) of the Companies Act had expired and when an aggrieved party challenged the decision of the Regional Director before the Bombay High Court, the High Court has taken the view that once the period lapses the Government loses its authority to issue such direction. The Bombay High Court has further taken the view that the period of twelve months is, therefore, essence of invocation of powers in terms of Section 22 vested in the appropriate Government. Prima facie, this view seems to be the correct view. However, it is difficult for this Court to subscribe the said view in view of the judgment of the Division Bench of this Court rendered in Special Civil Application No. 5751 of 2008 decided on 30th July, 2009 (wherein Coram: Mr. K.A. Puj. J. was a member) wherein it is held that the period of limitation is a defence available to the respondent and by not challenging the said decision of Coordinated Bench the respondent can be said to have acquiesced to the observations made permitting the petitioner to challenge the order-in-original before this Court, irrespective of limitation and, therefore, the Court took the view that the objection as to maintainability and question of limitation cannot be accepted against the petitioner in that case.

25. In above view of the matter, the finding given by the Regional Director with regard to the limitation, in the peculiar facts of this case, cannot be interfered with. The petition, therefore, on merits fails despite the fact that the order passed by the Regional Director is treated to have been passed within the period of limitation, looking to the facts of this case. Rule is discharged. No order as to costs.