(a) According to section 16 of the Companies Act, 2013, if, through
inadvertence or otherwise, a company on its first registration or on its
registration by a new name, is registered by a name which:
in the opinion of the Central Government (Power delegated to the
Regional Director), is of opinion that name (original or revised/new) of
company is identical with or too nearly resembles to the name by which a
company in existence, then, either:
(i) On its own or
(ii) On an application by a proprietor of already registered trade mark
under the Trade Marks Act, 1999, it may direct the company to
change its name.
The company shall change its name or new name, as the case may be,
within a period of three months from the issue of such direction, after
adopting an ordinary resolution for the purpose.
Application by a proprietor of registered trade mark shall be made within
three years of incorporation or registration or change of name of the
company.
In the given question, UINA Infra Projects Private Limited was
incorporated on 1st June, 2022. The trade mark of UINA Infra Projects was
registered on 1st April, 2018.
In terms of the above stated provisions and facts of the question, we can
answer the questions as under:
Part (i) - First Ground of Objection:
In the first instance, the contention of Mr. D (a director of UINA Infra
Projects Private Limited) is not tenable due to the fact that the restriction
is not only with respect to the name of an existing company, but also as a
result of an application filed before the appropriate authority by the
proprietor of a registered trademark.
In other words, the name of the company ”UINA Infra Projects” is
verbatim identical to the trademark registered by Mr. X. Hence, the
contention of Mr. D is not tenable.
Part (ii) - Second Ground of Objection:
In the second instance also, the contention of Mr. D is not tenable. The
application should be made by the proprietor of a registered trademark
within three years of incorporation or registration or change of name of
the company and not within two years.
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(b) (i) According to section 115 of the Companies Act, 2013, where, by any
provision contained in this Act or in the Articles of a company, special
notice is required for passing any resolution, then the notice of the
intention to move such resolution shall be given to the company by
such number of members holding not less than 1% of the total voting
power, or holding shares on which such aggregate sum not
exceeding five lakh rupees, as may be prescribed, has been paid-up.
In such a case, the company shall give its members notice of the
resolution in the manner as prescribed in **Rule 23** of the Companies
(Management and Administration) Rules, 2014.
Further, section 140(4) of the Companies Act, 2013 (the Act), provides
provision for the appointment of an auditor other than the retiring
auditor. As per this section, special notice shall be required for a
resolution at an annual general meeting for appointing a person as
an auditor in place of the retiring auditor, or providing expressly that
a retiring auditor should not be re-appointed.
In the present case, the provisions of section 115 of the Act have
been duly complied with. That is to say the notice of the intention to
move such a resolution as to appointment of auditor other than the
retiring auditor has been given by members of World One Limited,
holding more than 2% (i.e. more than 1 %) of the total voting power.
Accordingly, members can do so as per the provisions of the
Companies Act, 2013.
Alternate Answer
**Rule 23(1)** of the Companies (Management and Administration) Rules,
2014 specifies that a special notice required to be given to the
company shall be signed, either individually or collectively by such
number of members holding not less than one percent of total voting
power or holding shares on which an aggregate sum of not less than
5,00,000 rupees has been paid up on the date of notice.
As per the facts of the question, Members of World One Limited,
holding more than 2% of the total voting power, wants the company
to give a special notice to move a resolution for appointment of an
auditor other than the retiring auditor.
From the above provision, it can be inferred that the members
holding 2% of total voting power can approach the company to give
a special notice. However, they cannot force the company to give a
special notice to move a resolution for appointment of an auditor
other than the retiring auditor as stated in the question.
(ii) According to **Rule 20(4)** (v) (f) (C) of the Companies (Management
and Administration) Rules, 2014, the notice of the meeting shall
clearly state that the members who have cast their vote by remote
e-voting prior to the meeting may also attend the meeting but shall
not be entitled to cast their vote again.
Thus, in the given question, if a member of a listed company has
casted his vote through electronic voting, he can still attend the
general meeting of the company but neither he can vote again nor he
can change his vote.
(c) “Absoluta Sententia Expositore Non Indiget”
The first and primary rule of construction is that the intention of the
legislature must be found in the words used by the legislature itself. Thus,
if the words of a statute are capable of one construction only, then it
would not be open to the courts to adopt any hypothetical construction
on the ground that such hypothetical construction is more consistent with
the alleged object and policy of the Act.
It is a cardinal rule of construction that a statute must be construed
literally and grammatically giving the words their ordinary and natural
meaning. Therefore, the language used in the statute must be construed
in its grammatical sense. The correct course is to take the words
themselves and arrive if possible, at their meaning without reference to
cases, in the first instance. If the phraseology of a statute is clear and
unambiguous and capable of one and only one interpretation, then it
would not be correct to extrapolate these words out of their natural and
ordinary sense. When the language of a statute is plain and unambiguous
it is not open to the courts to adopt any other hypothetical construction
simply with a view to carrying out the supposed intention of the
legislature.
Thus, it is the primary duty of the court to interpret the words used in
legislation according to their ordinary grammatical meaning in the
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absence of any ambiguity or doubt. Normally, where the words of a
statute are in themselves clear and unambiguous, then these words
should be construed in their natural and ordinary sense and it is not open
to the court to adopt any other hypothetical construction. This is called
the rule of literal construction.
This principle is contained in the Latin maxim “absoluta sententia
expositore non indiget” which literally means “an absolute sentence or
preposition needs not an expositor”. In other words, plain words require
no explanation.