Calcutta High Court
Shyam Sel & Power Ltd. & Anr vs General Manager on 7 May, 2015
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
WP 728 of 2010
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
SHYAM SEL & POWER LTD. & ANR.
Versus
GENERAL MANAGER, EASTERN RAILWAY & ORS.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 7th May, 2015.
Mr.Shyamal Sarkar, Sr. Adv.
Mr.Mohit Gupta, Adv.
Mrs.Smita Mukherjee, Adv.
Mr.Bidyut Kr.Roy, Adv.
Ms.Aparna Ghosh, Adv.
The Court: The first writ petitioner prior to its change of name had become a wagon investor under the Wagon Investment Scheme of The Indian Railways Act, 1989. It had purchased one rake. Such rake was inducted with the railway system. On April 12, 2006 the first writ petitioner in its old name had entered into an agreement with the Railway Authorities under the Wagon Investment Scheme (WIS).
2The first writ petitioner has changed its name to its present name. A certificate of incorporation consequent upon change of name has been issued by the Registrar of Companies, West Bengal where the first writ petitioner is registered under the provisions of the Companies Act, 1956 on April 22, 2008. Consequent to its change of name the first writ petitioner had applied to the Railway Authorities to record such change in its name. It appears from a letter dated December 22, 2009 of the Railway Authorities that the legal department of the Railway Authorities had considered the application for change of name to be in order and had approved of the same.
Subsequent to its change of name the first writ petitioner entered into a subsequent agreement with the Railway Authorities in the new name in respect of the same scheme on September 4, 2009.
The first writ petitioner had booked few racks for transportation of goods. Such consignment was booked in its old name. The delivery of the consignment was taken in the new name of the first writ petitioner.
The Railway Authorities had demanded under charges by two several notices dated March 8, 2010 and March 19, 2010 on the ground that, the first writ petitioner had acted in breach of the agreement and the paragraph IV of the Rates Circular no.30 of 2008.
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It is contended on behalf of the writ petitioners that the same person had booked the rake and had taken delivery of the consignment. The booking was done in the old name and the delivery was taken in the new name. Therefore, there was no change in identity of the consignor and the consignee.
The Railway Authorities are represented. Referring to paragraph 3(c) of the affidavit-in-opposition it is submitted that, existence of Shyam Sel Limited was not there when the first writ petitioner had taken delivery of the consignment. Therefore, the Railway Authorities are entitled to the under charges as claimed.
I have considered the rival contentions of the parties and the materials made available on record in the factual matrix as noted above.
The first writ petitioner was initially known as Shyam Sel Limited. It changed its name to Shyam Sel & Power Limited with effect from April 22, 2008. Shyam Sel & Power Limited was incorporated under the provisions of the Companies Act, 1956. Its registered office is in Kolkata. It is registered with the Registrar of Companies, West Bengal. Consequent to the change of name it has obtained a fresh certificate of incorporation dated April 22, 2008 from the Registrar of Companies, West Bengal.
A fresh certificate of incorporation issued by the Registrars of Companies, West Bengal demonstrates that, Shyam Sel Limited had 4 changed its name to Shyam Sel & Power Limited. Essentially it is the same legal entity continuing in a new name. This fact had been brought to the notice of the Railway Authorities by the writ petitioners. The Railway Authorities had considered the same and had in fact, approved of the change of name. This approval appears from the letter dated December 22, 2009 as well as the subsequent execution of the agreement between first writ petitioner and the Railway Authorities.
The two demands made by the Railway Authorities dated March 8, 2010 and March 19, 2010 proceed on the basis that Shyam Sel Limited and Shyam Sel & Power Limited are two different legal entities.
Shyam Sel Limited and Shyam Sel & Power Limited are not different entities. Therefore, the demand made by the Railway Authorities on March 8, 2010 and March 19, 2010 are without any basis.
In such circumstances, the two demands dated March 8, 2010 and March 19, 2010 are set aside.
WP No. 728 of 2010 is allowed. No order as to costs.
(DEBANGSU BASAK, J.) dg2