ࡱ> z|y_ cbjbj,E,E ;N/N/[,N N 84)Z-)/)/)/)/)/)/)$,.:S)S)h)p-)-):,-kWIROd )~)0)R...--\. S)S)).N  \:  THE HIGH COURT OF SINDH AT KARACHI C. P. No.D- 2824 of 2013 Present: MR. JUSTICE SYED HASAN AZHAR RIZVI MR. JUSTICE MUHAMMAD JUNAID GHAFFAR GOBIS PAINTS (PVT) LIMITED.Petitioner V/s The Joint Registrar (SECP) & others..... Respondents Date of Hearing: 19.12.2013 Petitioner: Through Mr. Khan Muhammad Bungash, Advocate. Respondents: Mr. Bilal Kashmiri, Advocate for Respondent No.3. Mr. Saeed A Memon, Standing Counsel. Mr. Waqas Shaikh, Law Officer of SECP JUDGMENT MUHAMMAD JUNAID GHAFFAR J. Through the instant petition, the Petitioner has sought the following relief(s): - To set aside the impugned order dated 18.06.2013 issued by the Respondent No 1 as the action taken under the above provision is unconstitutional, Coram Non Judice and ultra vires of law. To grant ad-interim relief till the disposal of this petition. To restrain the respondents and their agents not to interfere in the smooth business of the Petitioner Company and further be allow the petitioner to conduct its business in the same name and style as GOBIS Paint (PVT) Ltd. Any other relief deem fit in the circumstances of the above facts. 2. Briefly, facts as set up in the instant petition are that the petitioner is a private limited company having its registered place of business at F-9, S.I.T.E, Hyderabad, duly registered under the Companies Ordinance 1984 (Ordinance 1984) on or about 07.01.2013 with the object of manufacturing and trading of paints of all sorts. It is further stated that the petitioner has also filed an application with the Trade Mark Registry for registration of its trade mark in the name and style of GODIVA vide application No 336699. It is further stated that after incorporation, the petitioner company has started its business operations in the name and style as stated above and has incurred a huge expenditure on account of printing of stationary and advertisements in the print and electronic media. It is further stated that it has also purchased machinery and has also obtained various amounts of loans from the Financial Institutions. It is further stated that after publication of advertisement in print and electronic media regarding the products of the petitioner, the respondent No 3, which is doing business in the name and style of M/s Allied Paint Industries, without being incorporated under the Ordinance 1984, has come forward with a claim that it is already manufacturing and doing the business of paints under its trade mark GOBIS and approached respondents No 1 & 2 with mala fide intentions to prohibit the petitioner from conducting its lawful business in the name and style of M/s GOBIS PAINTS (PVT) LTD. On such complaint the respondent No.1 issued an explanatory notice dated 22.03.2013 under section 38 of the Ordinance 1984, for rectification and or change of the name of the petitioner company as the word GOBIS was already registered as a trade mark in the category of paints in the name of the Respondent No 3 and hence was deceptive within the meaning of section 37 of the Ordinance 1984. A reply dated 01.04.2013 was submitted by the petitioner in which it was inter alia contended that there was no question of deception in the matter. However, simultaneously the said notice was also assailed in CP No D-1904/2013 before this Court which was subsequently allowed to be withdrawn vide order dated 02.07.2013 with a permission to file a fresh petition if need be arises. Thereafter the respondent No 1 has passed the impugned order dated 18.06.2013 whereby the petitioner has been directed in terms of section 38(b) of the Companies Ordinance 1984 to change its name within 30 days. The same has been impugned through the instant petition. On 10.07.2013 this court had suspended the operation of the impugned order dated 18.06.2013, however, on 09.10.2013, the following order was passed; To come up on 26.11.2013, on which date let learned counsel for Petitioner assist the Court as to the maintainability of this petition in view of alternate remedy by way of statutory appeal. Petitioner and learned counsel are put on notice should they not be in attendance to assist the Court on the next date, petition may be dismissed for non-prosecution. Subject to foregoing interim order made earlier to continue till next date. 3. On 19.12.2013, Mr. Khan Muhammad Bungash, learned counsel for the petitioner was specifically asked to satisfy this court on the maintainability of the petition in view of the observations as above. The learned counsel has contended that the respondent No 1 was not authorized to take any action against the petitioner in terms of section 38 of the Companies Ordinance 1984, including any rectification of the name as the petitioner had already complied with all the requisite formalities under the Ordinance 1984. It was further contended that the issue in hand was not covered under section 37 of the Ordinance and was required to be dealt with under the Trade Mark Ordinance 2001, as such the action of the respondent No 1 was illegal and without any lawful authority. Per learned counsel the respondent No 3 was not registered under the Ordinance of 1984, and is only registered as a trade mark owner of the word GOBIS, whereas the trade mark applied for by the petitioner in the name of GODIVA has no similarity or deceptiveness, therefore the complaint of the respondent No 3 was frivolous and not maintainable in terms of the Ordinance 1984. It was further argued by the learned counsel that in terms of section 37 of the Ordinance action can only be taken when there is a similarity of names of the companies and it has got nothing to do with the trade marks. It was further contended that once a name was registered after due formalities including search by the Respondents No 1 & 2, the same cannot be ordered to be rectified in terms of section 38 of the Ordinance 1984. On maintainability of the petition, though the learned counsel admitted that alternate remedy was available by way of a statutory appeal, but contended that such remedy was not efficacious and hence the same was not availed. It was further contended that since interpretation of law is involved in the instant petition, therefore this court had the jurisdiction to decide the same, irrespective of the fact that an alternate remedy was provided for in the Ordinance 1984. Learned counsel relied upon SBLR 2013 Sindh 1244, (Adam Sugar Mills Limited Vs. Federation of Pakistan & Others) 2007 MLD 770 (Hydri Ship Breaking Industries Ltd vs Sindh Government and Others), PLD 1963 SC 322 (Nagina Silk Mill, Lyallpur vs. The Incometax Officer, Award Lyallpur & Others), PLD 1992 KAR 258 (Messrs S. Abdulla & Co Vs. Collector of Customs Appraisement Karachi and 2 others) 1990 MLD 126, (Messrs Gul Ahmed Textile Mills Ltd Vs. The Collector of Customs (Appraisement), Customs House, Karachi & Others) PLD 1996 KAR 68, (Kamran Industries Vs Collector of Customs Exports & Others. 4. Mr. Bilal Kashmiri, learned counsel for the respondent No.3 has raised a preliminary objection as to the maintainability of the instant petition in view of availability of an alternate remedy by way of an appeal in terms of section 33 of the SECP Act 1997 and revision under section 484 of the Ordinance 1984. It was further contended that the object and purpose of sections 37 & 38 of the Ordinance 1984, is to prevent deception, fraud and misrepresentation in the business and trade through adoption of well-known trademarks as company name. Per learned counsel, admittedly the name of the Petitioner [GOBIS Paints (Private) Limited] is deceptive and identical to the registered trade mark of the respondent No 3, i.e. GOBIS which has a worldwide reputation and goodwill and is also in respect of the same product i.e. paints. It was further contented that the trade mark of the respondent No 3 is registered in Pakistan under registration No 161450 in class 2 since 07.03.2000. Per learned counsel the petitioner has deceitfully adopted the trade mark of respondent No 3 as its trade name and has concealed material facts before the respondents No 2 & 3 at the time of obtaining registration of its name. It was further contended that in fact (though not materially relevant in our opinion) the mala fide and ill will of the petitioner can be judged from the fact that it is trying to get register GODIVA in the trade mark registry as its trade mark, which per learned counsel is a famous international brand of GODIVA Chocolatier Inc. USA. Learned counsel referred to the case of M/s Of-space (Private) Limited, Vs. Federation of Pakistan reported in 2012 CLD 923. 5. Mr. Saeed A Memon learned Standing Counsel has adopted the arguments of Mr. Bilal Kashmiri and has contended that this petition is not maintainable as an alternate remedy was available to the petitioner by way of an appeal/revision. 6. We have heard learned counsel for both the parties as well as learned Standing Counsel and have also perused the record. 7. It appears that the Petitioner had applied for incorporation of the company with name and style of GOBIS Paints (Private) Limited with SECP, company registration office, Karachi, and was granted a certification under section 32 of the Ordinance 1984 and was also granted Corporate Universal Identification No 0082292 on or about 07.01.2013 by the respondent No 1. Thereafter the respondent No 3 came to know about registration of such name of the Petitioner, which was identical to and similar to its registered trade mark. Accordingly the respondent No 3, filed a complaint vide its letter dated 12.03.2013 before the respondent No 1, who thereafter issued a notice dated 22.03.2013 to the petitioner in terms of section 38 of the Ordinance 1984, asking the petitioner to justify its position within 14 days time as to why directions under section 38(b) of the Ordinance 1984 should not be issued for rectification or change of the name of the petitioner. The petitioner challenged the said show cause notice dated 22.03.2013 through a Constitutional Petition bearing No D-1904/2013 before this Court, which was subsequently withdrawn with a request to file a fresh petition if need be arises and such request was granted by this Court vide its order dated 02.07.2013. It seems that after withdrawing the said petition the petitioner opted to avail the remedy available under the Ordinance 1984, and contested the matter on the basis of its reply dated 01.04.2013 already filed before the respondent No. 1 through its advocate and contended that the notice dated 22.03.2013 was without any lawful authority as the name of the petitioner already stood registered and the matter was in respect of a dispute of trade mark, as such the respondent No 1 was not the appropriate authority in the matter. The respondent No.1 after affording opportunity of hearing to the petitioner passed a reasoned order dated 18.06.2013 which has once again been challenged through the instant petition without availing the alternate remedy in terms of section 484 of the Ordinance 1984. A preliminary objection was raised by the learned counsel for the respondent No 3, and this Court vide its order dated 09.10.2013 (See Para 2) had put the petitioner to notice to satisfy as to the maintainability of the instant petition. The learned counsel for the petitioner in this regard has submitted that the remedy available under the Ordinance 1984 was not efficacious; that the registrar had no lawful authority to pass the impugned order in terms of section 38 of the Ordinance 1984; that it was only the Commission and not the Registrar who could initiate any action against the petitioner for any correction or rectification in terms of section 37 of the Ordinance 1984; and that serious questions of interpretation of section 37 and 38 of the Ordinance 1984 were involved, as such this court had the jurisdiction to resolve the controversy. 8. Since a legal objection regarding the maintainability of the instant petition was raised at the very outset on behalf of the respondents, and this court had also framed such legal question, we would therefore decide this as a preliminary issue. In so far as the submission of the learned counsel regarding the efficaciousness of the alternate remedy is concerned, it would suffice to observe that this is not a justifiable ground to bypass the alternate remedy and to invoke the Constitutional Jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan. The learned counsel has failed to point out any reason as to why such remedy was not efficacious, adequate and expeditious. A mere statement without any reasoning or justification will not render such remedy as inefficacious. It is not the choice of the petitioner to merely term an alternate remedy to be non-efficacious, without any substantial or plausible reason or explanation and thereby justify the invocation of the writ jurisdiction of this court. The respondents, in turn, could also justify such remedy to be equally efficacious; hence we are of the view that the contention of the learned counsel for the petitioner in this regard is misconceived and is hereby repelled. 9. The second contention of the learned counsel is that the respondent No 1 had no jurisdiction in the matter as it was only the Commission which had the authority to invoke the provisions of section 37 of the Ordinance 1984 and the Registrar was only authorized to take cognizance of the matter in terms of section 38 once the Commission has given a definite finding in terms of section 37 of the Ordinance 1984. Further, per learned counsel, till date the Commission has not initiated any action against the petitioner, therefore the impugned order passed by the respondent No 1 was without any jurisdiction and lawful authority; hence the same can be set aside in the writ jurisdiction of this court, without recourse to any alternate remedy as provided under the Ordinance 1984. It would be advantageous to reproduce the relevant provisions of section 37 and 38 of the Ordinance 1984, for a better understanding of the matter; 37. Prohibition of certain names.- (1) No company shall be registered by a name which in the opinion of the Commission is inappropriate or deceptive or is designed to exploit or offend the religious susceptibilities of the people. (2) A company shall not be registered by a name identical with that by which a company in existence is already registered, or so nearly resembling that name as to be calculated to deceive, except where the company in existence is in the course of being dissolved and signifies its consent in such manner as the registrar requires. (3) Except with the prior approval in writing of the Commission, no company shall be registered by a name which contains any words suggesting or calculated to suggest: (a) the patronage of any, past or present, Pakistani or foreign, Head of State; (b) any connection with the Federal Government or a Provincial Government or any department or authority of any such Government; (c) any connection with any corporation set up by or under any Federal or Provincial law; or (d) the patronage of, or any connection with, any foreign Government or any international organization. (4) Whenever a question arises as to whether or not the name of a company is in violation of the foregoing provisions of this section the decision of the Commission shall be final. 38. Rectification of name of a company.- A company which, through inadvertence or otherwise, is registered by a name in contravention of the provisions of section 37: (a) may, with the approval of the registrar, change its name; and (b) shall, if the registrar so directs, within thirty days of the receipt of such direction, change its name with the approval of the registrar: Provided that the registrar shall, before issuing a direction for the change of name, afford the company an opportunity to make representation against the proposed direction: Provided further that no direction under clause (b) shall be issued after the expiration of three years from the date of registration of the company or registration by its new name, as the case may be. 10. From a combined reading of the provisions of section 37 of the Ordinance 1984 it can be seen that no company shall be registered by a name which in the opinion of the Commission is inappropriate or deceptive or is designed to exploit or offend the religious susceptibilities of the people; or by a name identical with that by which a company in existence is already registered, or so nearly resembling that name as to be calculated to deceive, except where such company if being dissolved and consents to such usage of the name in a manner as the registrar requires; or by a name which contains any words suggesting patronage of Pakistani or Foreign Head of State, or any connection with the Federal or Provincial Government or its departments, or patronage or connection with any Foreign Government or any International Organization. It is clear from the above that this provision comes in to force and play either prior to, or at the time of registration of a company and not thereafter. Once the name of a company is registered, whether bona fidely or through inadvertence or error, no further recourse is available under this section. This is for the reason that in this section throughout, the words No company shall be registered has been used, which means that the Commission, can act in all the situations as explained in sub section (1), (2) & (3) of section 37 of the Ordinance 1984, but only prior to such registration of the name. If the intention had been otherwise, then the words No company shall be registered would not have been used herein. The use of these words relates to pre-registration of a companys name. The authority and jurisdiction of the Commission is only available before the registration of a companys name, and once the same has been registered, then the Commission for the purposes of section 37 of the Ordinance becomes functuous offico. In fact the Commission under this section is performing exclusively its administrative functions, and its decision under section 37 (4) of the Ordinance 1984 is final, though may be reviewable in terms of section 484(2) of the Ordinance 1984. Therefore, the contention of the learned counsel that it is only the Commission which can act in terms of section 37 of the Ordinance, is only correct to the extent and the time, when the name of the company has not been registered, and not subsequently. In the instant matter as the name has already been registered, whether due to inadvertence or otherwise, the Commission on its own cannot act any further in terms of section 37 of the Ordinance 1984. The action taken by the respondent No 1 has in fact been carried out in terms of section 38 of the Ordinance 1984, which is self-executory in nature and is allowed to be taken as a remedial measure once a name of a company has been allowed to be registered by the Commission either due to inadvertence or error in violation of the provisions of section 37 of the Ordinance 1984. The action taken under section 38 of the Ordinance 1984 is not dependent on a suggestion or instructions or action taken in terms of section 37 ibid. The Commission comes in to action only prior to registration of the name, whereas the Registrar acts under section 38 after a registration is done including in violation of section 37 of the Ordinance 1984. Therefore we are of the view that the Respondent No 1 has acted with lawful authority and jurisdiction while passing the impugned order and the contention of the learned counsel for the petitioner that the same was without jurisdiction has no force and is also hereby repelled. 11. Even otherwise, it is pertinent to state that in such matters where the issue regarding registration of names of companies with similarity or deceptiveness is involved, there has been a consistent view of this court that resolution of such issues rests with the Registrar/Corporate Law Authority/SECP, as the case may be. If any authority is needed one may refer to the case of Muhammad Baksh & Sons Ltd., Vs Azhar Wali Muhammad reported as 1986 MLD 1870 and ADT Services AG Vs. ADT Pakistan (Private) Limited reported as 2005 CLD 1546. In both these cases, two learned Single Judges of this court, after coming to the conclusion that though the plaintiffs in these matters were entitled to injunctive relief(s), had issued directions to approach the relevant authorities for corrective measures as contemplated under the Companies Act 1913 and the Ordinance 1984. Therefore, even if were to hold that the instant petition is maintainable, (which we have not), the matter was required to be finally decided by the appropriate forum provided for under the Ordinance 1984. 12. Coming to the various decisions relied upon by the learned counsel for the petitioner; we may observe that the facts of the instant case are entirely and materially different from the facts of the cases referred to by the learned counsel. In the case of Adam Sugar Mills (Supra), the issue related to filing of an appeal in terms of the Public Procurement Regulatory Authority Ordinance 2002 read with Rule 48 of the rules framed thereunder, which provided that any bidder feeling aggrieved by any act of the procuring agency shall have a right to lodge a complaint after submission of his bid. The Court held that since in that case the bidder was not allowed to file any bid, therefore question of availing the alternate remedy did not arose, hence the petition was held to be competent. In the case of Hydri Shipbreaking (Supra) the court had come to the conclusion that the impugned action was without any lawful authority and jurisdiction, as such writ was held to be maintainable. In the case of Nagina Silk Mills the Honorable Supreme Court held that the officer who had passed the impugned assessment order, lacked jurisdiction, as such it was held that the petition was maintainable. Similarly in the case of S.Abdullah (Supra), the court had observed that the petitioner had challenged the applicability of the Notification, and since the respondent had already given its finding that it was applicable, writ petition was held to be maintainable. Finally in the case of Gul Ahmed Textile Mills (Supra), a Division bench of this Court held the writ petition to be maintainable, after coming to the conclusion that the alternate remedy was not adequate, equally inexpensive, expeditious and beneficial. In the instant matter we have not been persuaded to give any such findings on the basis of the facts of the instant petition. Therefore, with due deference, the ratio of this judgment is also not applicable to the case of the petitioner. 13. Since we have already held that the impugned action was taken with lawful authority and jurisdiction vested with the respondent No 1, as such we further hold that the instant petition is not maintainable as adequate and efficacious remedy by way of revision/appeal in terms of section 484 of the Ordinance 1984 was available to the petitioner, therefore the same was dismissed by us along with all pending applications(s) vide our short order dated 19.12.2013 and the above are the reasons in support of such dismissal. 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