Daulat Ali Khan Lehri VS Sardar Taran Khan etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

SECP Appeal No.4 of 2021 Daulat Ali Khan Lehri Versus Sardar Taran Khan and others S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 13.01.2022 Mr. Shah Nawaz Skakeeb, Advocate for the appellant, Mr. Niaz Ahmad, Advocate for respondent No.1, Mr. Husnain Arshad Khokhar, Advocate for

SECP,

Mr. Asif Awan, ASI.

Through the instant appeal, the appellant, Daulat Ali Khan Lehri, impugns the order dated 12.07.2021 passed by the Appellate Bench of the Securities and Exchange Commission of Pakistan (“S.E.C.P.”), dismissing the appellant”s appeal under Section 33 of the Securities and Exchange Commission of Pakistan Act, 1997 (“the 1997 Act”) against the order dated 14.12.2020 passed by the Executive Director (Legal Affairs Division), S.E.C.P. Vide the said order dated 14.12.2020, the Executive Director (Legal Affairs Division), S.E.C.P. partially allowed the appeal of respondent No.1 (Sardar Taran Khan), against the order dated 08.09.2020 passed by the Registrar of Companies, S.E.C.P. Vide the said order dated 08.09.2020, the Registrar of Companies, S.E.C.P. had dismissed respondent No.1”s appeal filed against the direction under Section 11 of the Companies Act, 2017 (“the 2017 Act”) issued on 09.12.2019 by the Additional Joint Registrar of Companies, S.E.C.P. on the appellant”s complaint dated 30.01.2019. The Additional Joint Registrar of Companies had, vide his said order dated 09.12.2019, allowed the appellant”s complaint and directed respondent No.1 to change the name of his company within 30 days. In the said complaint,

the appellant had alleged that respondent No.1 got incorporated the company in violation of Section 10 of the 2017 Act, as the name of respondent No.1”s company i.e. “Super Sada Bahar Daewoo Bus Service (SMC-Pvt.) Limited” deceptively resembles with the appellant”s registered firms named “Sada Bahar International Goods Transport Company” and “Super Sada Bahar Daewoo Bus Service”.

2.Learned counsel for the appellant submitted that the appellant is in the business of passenger transport service since many decades now; that his firms were registered with the Registrar of Firms at Quetta in the years 1969 and 1989; that the appellant also has a registered trade mark “SADA BAHAR” whereas respondent No.1 has no registered trade mark in his favour; that the appellant has already filed a suit before the Intellectual Property Tribunal to restrain respondent No.1 from infringing his registered trade mark; that respondent No.1 could not have been allowed to incorporate a company which has the phrase “SADA BAHAR” in its name; and that the orders dated 09.12.2019 and 08.09.2020 passed by the Additional Joint Registrar of Companies and the Registrar of Companies, respectively did not suffer from any legal infirmity. Learned counsel for the appellant prayed for the appeal to be allowed in terms of the relief sought therein.

3.On the other hand, learned counsel for respondent No.1 in support of the impugned order dated 12.07.2021, contended that prior to the incorporation of respondent No.1”s company, no company bearing the name of “Super Sada Bahar Daewoo Bus Service (SMC-Pvt.) Limited” or resembling with the same had been registered

with S.E.C.P.; that Section 10 of the 2017 Act does not prohibit resemblance of the company”s name with the name of a registered firm; that in respondent No.1”s company name, the prefix “SADA BAHAR” and suffix “DAEWOO” are common in the local transport industry; that the appellant got his trade mark registered on a date later than the incorporation date of respondent No.1”s company; and that impugned orders dated 14.12.2020 and 12.07.2021 are correct annotation of the law on the subject. Learned counsel for respondent No.1 prayed for the appeal to be dismissed.

4.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.

5.The record shows that the impugned concurrent orders dated 14.12.2020 and 12.07.2021 have been passed on following three grounds:- “(i) Bar contained under section 10 (1) (a) of the 2017 Act is restricted to “companies” only and does not embrace the “firms”;

(ii)The appellant”s trade mark was registered on a date later than incorporation of respondent No. 1”s company; and

(iii)There is a distinction between the effect of registration of a company under the 2017 Act and registration of a trade mark under the Trademarks Ordinance, 2001.”

6.The appellant in his complaint dated 30.01.2019 basically alleged that respondent No.1 got his company registered in violation of Section 10(1) of the 2017 Act. In order to appreciate the implication of the said contention, it would be essential to examine the said Section 10(1) of the 2017 Act which is reproduced as follows:- “10. Prohibition of certain names.—(1) No company shall be registered by a name which contains such word or expression, as may be

notified by the Commission or in the opinion of the registrar is—

(a)identical with or resemble or similar to the name of a company; or

(b)inappropriate; or

(c)undesirable; or

(d)deceptive; or

(e)designed to exploit or offend religious susceptibilities of the people; or (f) any other ground as may be specified.

7.The appellant claims that the name of respondent No.1”s company is identical to his company and for that reason registration of respondent No.1”s company was barred under Section 10(1)(a) of the 2017 Act. Now the said section provides that a company cannot be registered by a name which contains a word or expression which in the opinion of the Registrar is identical with or resemble or similar to the name of already registered company. In case a complaint with regard to registration of a company in violation of Section 10 of the 2017 Act is received after such a company has already been registered, the Registrar is empowered under Section 11 of the 2017 Act to inter alia pass a direction to the subsequently registered company to change its name. In the impugned order dated 14.12.2020, the Executive Director (Legal Affairs Division), S.E.C.P. had observed that application under Section 10(1)(a) of the 2017 Act is expressly restricted to resemblance or similarity of the name applied for a company under incorporation with an already registered company. Meaning thereby the restriction under Section 10(1)(a) of the 2017 Act cannot be extended to resemblance or similarity of the name applied for a company with the name of an already registered firm. The said order dated 14.12.2020 was upheld vide order dated 12.07.2021 passed by the Appellate Bench of

S.E.C.P. Admittedly, the appellant has never had a registered company with the name resembling with respondent No.1”s company, so to attract the bar under Section 10(1)(a) of the 2017 Act. I have been given no other reason to form a view dissimilar to that of the two lower forums. Additionally, an interpretation converse to the one given in the impugned orders would also be impractical as it was not feasible for the Joint Registrar of S.E.C.P. at Multan to have verified the availability of respondent No.1”s company name from the records of the Registrar of Firms at Quetta-Balochistan (with whom the appellant”s firm was registered).

8.Additionally, for the alleged violation of the appellant”s trade mark, a separate forum for redressal has been provided under the Trademark Ordinance, 2001 and admittedly, the appellant”s suit in this regard is already pending before the Intellectual Property Tribunal. Therefore, I find no infirmity in the impugned order dated 12.07.2021.

9.In view of the above, the instant appeal, being without merit, is dismissed. There shall be no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*