IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE EIGHTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.5179 OF 2008 Between: Union of India and others .....PETITIONERS AND M/s. Advanced Radio Masters Limited and another ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.5179 OF 2008 ORDER: This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against the order, dated 10.11.2008, in I.A.No.100 of 2008 in O.P.No.1872 of 2002, on the file of XIV Additional Chief Judge, City Civil Court (Fast Track Court), Hyderabad, whereunder and whereby, the petition, filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”), to amend the cause title by replacing M/s. Advanced Radio Mast Private Limited with ICOMM Tele Limited, on the ground that the company changed its name by resolution, was allowed. 2. O.P.No.1872 of 2002 is filed by the petitioners herein to set aside the Award, dated 15.06.2002, passed by respondent No.2 in Arbitration Case No. PAC 5/2000, in relation to contract No.80-365/94- MMC, between the petitioners herein and respondent No.1 herein. In the said O.P., the present petition is filed by respondent No.1 to amend the cause title. 3. Learned counsel for the petitioners contended that there is no contract or agreement between the petitioners and the changed company ‘ICOMM Tele Limited’ and therefore, allowing the amendment petition is nothing but abuse of process of Court and hence, he prays to set aside the impugned order. 4. On the other hand, learned counsel for the respondents contended that with the permission of the Central Government, the Registrar of Companies has amended the name of respondent No.1 - company; that it is not a new company; that therefore, in order to do substantial justice to the parties, the trial Court rightly allowed the petition; that there are no grounds to interfere with the impugned order and hence, he prays to dismiss the revision petition. 5. The question is whether the petition filed under Order VI Rule 17 C.P.C. can be allowed, with regard to the change in the name of respondent No.1 - company? 6. It is not in dispute before this Court that there was agreement or contract between the petitioners herein and M/s. Advanced Radio Mast Private Limited i.e., respondent No.1 herein. During the pendency of the O.P., respondent No.1 - company, by resolution, resolved to change its name and the Central Government has given approval to the Registrar of Companies, Andhra Pradesh, to change the name of respondent No.1 - company from M/s. Advanced Radio Mast Private Limited to ICOMM Tele Limited. On 06.02.2003, respondent No.1 – company obtained fresh Certificate of Incorporation duly effecting the change of name of the company. 7. The learned counsel for the petitioners placed reliance on a decision of the Honourable Supreme Court in Indowind Energy Limited v. Wescare (India) Limited and another[1], wherein it is held thus: “It is not in dispute that Subuthi and Indowind are two independent companies incorporated under the Companies Act, 1956. Each company is a separate and distinct legal entity and the mere fact that the two Companies have common shareholders or common Board of Directors, will not make the two Companies a single entity. Nor will the existence of common shareholders or Directors lead to an inference that one company will be bound by the acts of the other. If the Director who signed on behalf of Subuthi was also a Director of Indowind and if the intention of the parties was that Indowind should be bound by the agreement, nothing prevented Wescare insisting that Indowind should be made a party to the agreement and requesting the Director who signed for Subuthi also to sign on behalf of Indowind.” The learned counsel for the petitioners also relied upon another decision in M/s. Malhati Tea Syndicate Limited v. Revenue Officer, Jalpaiguri and others[2], wherein it is held thus: “We are unable to accept this contention on behalf of the applicant. The first part of the sub-section protects the rights and obligations of the company, already acquired before the change of its name and also protects legal proceedings by or against it. The second part of the sub-section authorizes the continuation of a pending legal proceeding which was commenced by the company in its former name. The second part provides that legal proceedings commenced by the company in its former name may be continued by the company after the change of its name. Nothing in this sub-section authorized the company to commence a legal proceeding in its former name at a time, when it had acquired its new name which has been put on the Register of the Joint Stock Companies. In this case, the Memorandum of Appeal had been filed by the company in its former name, namely, Malhati Tea Syndicate Ltd., which was no longer on the Register of the Joint Stock Companies. We are, therefore, of the view that the appeal itself is incompetent, as it has been purported to be filed in a name which is no longer there on the Register of the Joint Stock Companies.” The learned counsel also placed strong reliance on a decision of the Honourable Supreme Court in Khardah Company Ltd., v. Raymon & Co. (India) Private Ltd.,[3], wherein it is held thus: “Such a notification was issued by the Central Government in exercise of the power conferred by S. 17 of the Act, on October 29, 1953. It is as follows:- “No. 2(24) Jute/53- In exercise of the powers conferred by S. 17 of the Forward Contracts (Regulation) Act, 1952 (LXXIV of 1952), the Central Government hereby declares that no person shall enter into any forward contact other than a non- transferable specific delivery contract for the sale or purchase of raw jute in any form, except to the extent and in the manner specified below, that is to say: (1) all forward contracts, other than non-transferable specific delivery contracts for the sale or purchase of raw jute entered into before the date of this notification and remaining to be performed after the said date shall be deemed to be closed out at the rate prevailing at the time at which the Forward Market closed on the said date; (2) all differences arising out of any contracts so deemed to be closed out shall be payable on the basis of the rate specified in clause (1) of this notification and the seller shall not be bound to give and the buyer shall not be bound to take delivery of raw jute.” The contract with which we are concerned in these appeals was entered into on September 7, 1955, when the notification aforesaid was in force, and so it would be hit by it, unless it is a non-transferable specific delivery contract and the point for decision is whether it is that. There is no dispute between the parties that it is a specific delivery contract. It is between named buyers and sellers, the goods are specified, as also the period during which they have to be actually delivered and their price is fixed. What is in controversy is whether it is transferable or non- transferable. There was considerable argument before us on the question as to assignability of a contract. The law on the subject is well settled and might be stated in simple terms. An assignment of a contract might result by transfer either of the rights or of the obligations thereunder. But there is a well- recognized distinction between these two classes of assignments. As a rule obligations under a contract cannot be assigned except with the consent of the promisee, and when such consent is given, it is really a novation resulting in substitution of liabilities. On the other hand rights under a contract are assignable unless the contract is personal in its nature or the rights are incapable of assignment either under the law or under an agreement between the parties.” There is no dispute about the law laid down in the above decisions. Those are the cases where a new company sought to be incorporated. The ratio has no application to the present case for the simple reason that the proposed ICOMM Tele Limited is not a new or separate company incorporated under the Companies Act, 1956. Board members of respondent No.1 - company passed a resolution to change the name of the company from M/s. Advanced Radio Mast Private Limited to ICOMM Tele Limited. That has been approved by the Central Government in accordance with law and the Central Government has permitted the Registrar of Companies to change the name of respondent No.1 – company. In pursuance of the approval of the Central Government, the Registrar of Companies has changed the name of respondent No.1 – company from M/s. Advanced Radio Mast Private Limited to ICOMM Tele Limited. Therefore, in view of the fact that respondent No.1 - company is not a new company and that there is no change with regard to the purpose and objectives of the company, and similarly there is no change of the shareholders, directors or members of the board, but the change is only with regard to the name of the company, the trial Court rightly allowed the petition. There are absolutely no grounds to interfere with the impugned order. Hence, the revision petition is devoid of merit and is liable to be dismissed. 8. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. _______________ K.C. BHANU, J February 08, 2011 MD THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.5179 OF 2008 February 08, 2011 [1] (2010) 5 SCC 306 [2] AIR 1973 Calcutta 78 [3] AIR 1962 SC 1810