- (1.) HEARD Sri Arvind Srivastava, Advocate holding brief of Sri Nikhil Tandon, learned counsel for the petitioners. By means of the present writ petition, the petitioners are challenging the order dated 22.11.2012 passed by Additional District Judge, Mirzapur, by which the revision filed by the petitioners has been rejected. It appears that certain land belonging to the ancestral of the petitioners have been acquired by the State Government for the respondent. When the possession of the said land has not been given to the respondent, the respondent filed suit no.129 of 1982. The suit was decreed ex-parte on 03.09.1983 and, thereafter, an execution case no.35 of 1989 was instituted at the behest of the respondent on 04.12.1989. Jagarnath died on 07.06.1983. When the petitioners came to know about the ex-parte order they moved recalling application under Order 9 Rule 13 C.P.C. The said application has been rejected by the trial court on 06.03.2002, against which the petitioners filed appeal no.40 of 2002, which was allowed by the District Judge, Mirzapur vide order dated 06.02.2010. It appears that the respondent filed application for the substitution of the legal heirs of the defendant, Jagarnath. In the year 1989 the name of the company has been changed from Hindustan Aluminum Corporation Limited to Hindalco Industries Limited and the changed name has been registered on 09.10.1989 with the Registrar of Companies, Mumbai, Mahrashtra. Substitution application was moved under the authority of Hindalco Industries Limited. The petitioners raised the objection that the said application was not maintainable as no application has been moved for the change of the name of the company in the suit. The objection of the petitioners has been rejected and the substitution application has been allowed, against which the petitioners filed revision, which has been rejected by the impugned order.
(2.) LEARNED counsel for the petitioners submitted that when the name of the company has been changed, the application should be moved in the suit for the change of the name but without moving any such application, the substitution application under the authority of Hindalco Industries Limited was not maintainable. I have considered the submissions of learned counsel for the petitioner and perused the impugned order. Section 23 (3) of the Companies Act, 1956 reads as follows: "The change of name shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against it; and any legal proceedings which might have been continued or commenced by or against the company by its former name may be continued by or against the company by its new name."
(3.) SECTION 23 of the Companies Act came up for consideration before the learned Single Judge of this Court in the case of Simbhaoli Sugar Mills Limited, Simbhaoli and Hindustan Brown Boveri Limited, reported in ALR 1994 (1), 259. The learned Single Judge held as follows: "It is clear from sub-section (3) of Section 23 that by the change of name, the constitution of the old company is not changed. The section does not provide or imply that on the issue of the new certificate of registration in the new name, the company as it existed will stand dissolved and the new company will come into existence. On the other hand, sub- section (3) of Section 23 provides that the change of name will not affect any right or obligation of the company and that legal proceeding pending in the old name will not be rendered ineffective but will be continued by or against the company in its new name. It has been held by the Calcutta High Court in (1985) (3) Company Law Journal page 309 that the expression used in the section 23 (3) of the act is "the Company" and not "old Company" or "new Company" or "dissolved Company". These are further indication that inspite of a change of name, the entity continues. In the case of D.Shrinivasiah v. Vellore Vera Lakshmi Bank Ltd., reported in AIR 1954 Mad.802, while considering the provision of section 11 (6) of the Companies Act, 1913, which is more or less similar to section 23 of the Companies Act, 1956, it has been held that the object of the said section was to provide that notwithstanding the change in the name there would be alteration in the legal status of the company as its incorporation was not in any manner effected by the mere change of name. It continues to possess the same right and remained subject to the same obligation as before the change. A Division Bench of our Court also in the case of F.S.Abdul Qayum vs. Manindra Land and Building Corporation, reported in AIR 1955 All 192, held while considering the provision of Section 11 (6) of the Company Act, 1913 that a change in the name of the plaintiff company during the pendency of the suit does not affect the rights of the company. If therefore, decree is passed in the old name of the company it can be executed by the company in its new name." ;