: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO.77 OF 2009 IN COMPANY PETITION NO.541 OF 2008 IN COMPANY APPLICATION NO.340 OF 2008 In the matter of Companies Act, 1956 In the matter of Sections 391 to 394 of the Companies Act, 1956 ; And In the matter of Intertek Testing Services India Pvt. Ltd. And In the matter of scheme of Amalgamation of Caleb Brett India Pvt. Ltd. with Intertek Testing Services India Pvt. Ltd. Intertek Testing Services India Pvt.Ltd. A Company incorporated under the Companies Act, 1956 having its Registered Office at Godrej Soap Complex, Unit No.4, Phirojshanagar, Eastern Express Highway, Vikhroli (East) Mumbai-400 079 ....Applicant Mr.Sanjay Udeshi and Mr.P. Khosla i/b M/s.Sanjay Udeshi & Co. for the Petitioner. Mr.C.J. Joy for the Regional Director. CORAM : S.J. VAZIFDAR, J. DATED : 6TH FEBRUARY, 2009. ORAL JUDGMENT :- 1. The Applicant has sought an order directing : 2 : the Registrar of Companies, Maharashtra to approve the proposed name of the company which is a part of the scheme of amalgamation sanctioned by an order of this Court dated 28.9.2008. 2. The above company petition was filed seeking sanction of a scheme of amalgamation between Caleb Brett India Private Limited (Transferor Company) with the Applicant Company (Transferee Company). After complying with the requisite procedure and requirements of law, the petition was taken up for hearing. After passing necessary directions, the Regional Director was served with a copy of the papers and proceedings. 3. The Regional Director filed an affidavit dated 25.7.2008. In paragraph 3, he has stated that he sent copies of the petitions to the concerned Registrar of Companies with a request to send his report on the affairs of the company. He further states that he had examined the report from various points. A copy of the report of the Registrar of Companies dated 1.8.2008 is annexed at Exhibit "A" to the said affidavit. The report of the Registrar of Companies notes at serial No.23 of the table therein that Clause 25 of the scheme proposes a change in the name of the transferee company after amalgamation. : 3 : Clause 25 of the scheme reads as under :- "25. CHANGE OF NAME: CHANGE OF NAME: CHANGE OF NAME: Upon the Scheme of Amalgamation being effective, the merged Company shall be known as "INTERTEK INDIA PRIVATE LIMITED". The Transferee Company shall take necessary steps to give effect to such change of name. The Transferee Company shall also increase and/or alter its authorised share capital suitably to enable it to issue and allot the shares to the members of CBIPL as required under this scheme." 4. Thereafter the Petition come up for hearing. By the said order dated 28.9.2008, the learned Judge sanctioned the scheme. The learned Judge inter-alia noted the affidavits filed by the Regional Director and the Official Liquidator. The learned Judge observed that the scheme did not violate any provisions of law and is not contrary to the public policy. He also noted that there was no objection to the same in any respect by any of the parties including the Official Liquidator and the Regional Director. 5. Thereafter the company filed the scheme with the Registrar of Companies on 20.10.2008. On 25.11.2008, a formal application was made by the company to effect the change in the name of the transferee company as per clause 25 of the scheme. : 4 : 6. On 25.11.2008, the Registrar of Companies passed the following order/remarks :- "Resembling name. Suggest fresh name/s SRN should be resubmitted by 06/01/2009. This is the last time this SRN can be resubmitted. Thereafter further resubmissions of this SRN shall not be allowed." . It is submitted on behalf of the Regional Director that the Company is bound to follow the provisions of Section 21 of the Companies Act, 1956 regarding the change in the name. 7. This aspect is covered by the judgment of Dr.D.Y. Chandrachud, J. dated 11.4.2007 in Company Petition No.64 of 2007 along with Company Petition No.65 of 2007 in the matter of scheme of arrangement and amalgamation between YOU Telecom India Pvt. Ltd. and YOU Broadband Networks India Pvt. Ltd. In paragraph 9, the learned Judge held as under :- "9. The objection of the Regional Director that the name of the transferee company is to be changed and therefore a separate compliance with Section 21 in respect of the filing of necessary forms with the Registrar of Companies is mandatory, will not survive in view of the law laid down in Vasant Investment and PMP Auto Industries (1981) 51, Company Cases, 20. The furnishing of a notice to the Registrar of the scheme as sanctioned will in any case constitute substantial compliance with the provisions of Section 21." : 5 : 8. Apart from being bound, I am in respectful agreement with the judgment. It is pertinent to note that under Section 394(A) of the Companies Act, it is mandatory for the Court to give notice on every application made to it under Sections 391 or 394 to the Central Government. Moreover, the Court is bound to take into consideration the representations if any are made to it by the Government before passing an order under any of these sections. "394A. Notice to be given to Central "394A. Notice to be given to Central "394A. Notice to be given to Central Government for applications under Government for applications under Government for applications under sections 391 and 394. - sections 391 and 394. - sections 391 and 394. - The (Tribunal) shall give notice of every application made to it under section 391 or 394 to the Central Government, and shall take into consideration the representations, if any, made to it by that Government before passing any order under any of these sections.)" 9. In view of Section 394(A), the notice was ordered to be given to the Regional Director by this Court and was so given. Pursuant thereto, the Regional Director called for the report from the R.O.C. referred to earlier and filed his affidavit enclosing a copy of the report of the R.O.C. It was open to the Regional Director under whom R.O.C. functions to raise any objection under Section 21. Admittedly, no objections were raised. If objections to the change in the name had been taken when the : 6 : Petition was considered, it would have been open to the Court to consider whether or not the change in the name ought to be permitted. That stage has passed in the present case. 10. Subject to any orders that may be passed, in the event of the Regional Director/R.O.C. adopting any proceedings, the R.O.C. is bound to comply with the order of this Court sanctioning the scheme including by changing the name as provided in clause 25 thereof. 11. In the circumstances, it must be held that refusal by the R.O.C. to record the change in the name in compliance with the order of this Court dated 28.9.2008 is not justified. 12. In the circumstances, the Company Application is made absolute in terms of prayer (A) with the above clarification. The change in the name shall be recorded within two weeks from today.