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2008 Supreme(Kar) 915

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Cyriac Joseph and B.V. Nagarathna, JJ.
Bank of Tokyo-Mitsubishi Ltd. (Formerly the Bank of Tokya Ltd. and Now known as The Bank of Tokya-Mitsubishi UFJ Ltd.) A company incorporated in Japan under the Laws of Japan rep. by Mr. G.M. Awasare, Assistant General Manager and Power of Attorney Holder —Appellant
Vs.
Klen and Marshalls Manufacturers and Exporters Ltd., A company incorporated under the provisions of the Companies Act, 1956 —Respondent
Writ Petition Nos. 12303 and 12304 of 2006
Decided on : 02-07-2008

Advocates:
Advocate appeared:
Mr. Rajeev Nair, Holla and Holla, for the Appellant
Mr. K.G. Raghavan, DUA Associates, for the Respondent

Headnote:BANKING REGULATION ACT, 1949 - Sections 40-B & 22 & Companies Act (1 of 1956), Sections 592, 593: [Cyriac Joseph, C.J. & Mrs. B.V. Nagarathna, J] Merger - Law applicable - Whether new entity comes into existence -Merger of Banks of Tokyo Ltd., with the Mitsubishi Bank Ltd., took place under provisions of Japanese Law - Entire procedure of merger occurred in Japan-Bank of Tokyo Ltd., had established business in India since year 1952, and Mitsubishi Bank Ltd., had no place of business in India - Nevertheless, after merger came into effect in Japan merged entity continued its business in India - Held, It is not a case of establishment of place of business for first time in India but continuation of business already established in year 1952. Moreso when licenses obtained by Bank of Tokyo were all succeeded to by Bank of Tokyo Mitsubishi as transferee party.

       BANKING REGULATION ACT, 1949 - Section 49-B &Companies Act (1 of 1956), Section 592: [Cyriac Joseph, C.J. & Mrs.B.V.Nagarathna, J] Change of name of banking company or alteration of memorandum of a banking company - Held, Provisions of Banking Regulation Act, 1949 override provisions of Companies Act, 1956.

       COMPANIES ACT, 1956 - Sections 234 & 591: [Cyriac Joseph, C.J. & Mrs. B.V. Nagarathna, J] Power of Registrar - Banking companies incorporated outside India - Provisions as to establishment of places of business in India - Held, Permission of Reserve Bank of India for foreign bank for establishing any place of business for carrying on any activity of commercial nature is necessary.

       COMPANIES ACT, 1956 - Sections 591, 593 & 592: [Cyriac Joseph C.J. & Mrs. B.V. Nagarathna, J] Banking company incorporated outside India - Established place of business in India before commencement of Act and continued to have established place of business in India at commencement of Act is covered under Section 593 r/w Section 591 and Section 592 is not attracted.

ORDER

B.V. Nagarathna, J.— These writ petitions are filed challenging the common order dated 19.10.2005 passed by the Debt Recovery Appellate Tribunal-Channel ('DRAT', Channel for short) in Miscellaneous Appeal No. 82/2005 and Miscellaneous Appeal No. 83/2005 arising out of an Interim Application No. 4/2003 in Original Application No. 326/2000 and Original Application No. 327/2000, setting aside the order dated 14.5.2003 passed by the Debt Recovery Tribunal Bangalore ('DRT', for short) in Interim Application No. 4/2003 filed by the respondent herein in Original Application No. 326/2000 and Original Application No. 327/2000 pending before the Debt Recovery Tribunal and also challenging the common order dated 7.8.2006 passed by the DRAT in Review Petition No. 1/2006 and review Petition No. 2/2006 filed by the petitioner herein in the aforesaid Miscellaneous Appeal No. 82/2003 and Miscellaneous Appeal No. 83/2003 disposed of by DRAT, Chennai on 19.10.2005.

2. the relevant facto of both the cases are that the petitioner is a Bank Incorporated under the Laws of Japan and having its branch offices in India now known as "The Bank of Tokyo-Mitsubishi UFJ Ltd.,". Originally, The Bank of Tokyo had obtained license for establishing a place of business in Calcutta as per Exhibits-A and D to Annexure-C dated 17.11.1952. Thereafter, The Bank of Tokyo Ltd., commenced its banking operations at Bombay after obtaining license from the Reserve Bank of India ('RBI', for short) as per Exhibits-B and C to Annexure-C dated 8.5.1953. Subsequently, The Bank of Tokyo merged with the Mitsubishi Bank Limited and the RBI as per Exhibit-E to Annexure-C dated 30.3.1996 conveyed its approval for the change of its name from The Bank of Tokyo Ltd., to The Bank of Tokyo-Mitsubishi Ltd., upon merger. the RBI emended license bearing No. BLC 9/53 and changed the name of the Bank from The Bank of Tokyo Ltd., to The Bank of Tokyo-Mitsubishi Ltd., Consequently, the RBI published a notification in the Gazette of India regarding the change of name of the Bank on 27.4.1996 as per Exhibit-F to Annexure-C. the Bank of Tokyo-Mitsubishi, Ltd., also filed From No. 49 on 5.81996 with the Registrar of Companies ('ROC' for short) regarding the alterations made in the name of the Bank together with alterations carried out in the Memorandum of Articles of Association and List of Directors and the same was approved by the ROC on 23.7.1996 as per Exhibit-H to Annexure-C. Exhibit B to Annexure-H dated 24.8.2004 is a copy of the letter from Deputy ROC, NCT, Delhi and Haryana recording Registration of Bank of Tokyo Ltd., under SL No. F202 and consequent upon merger and filing and registration of Form No. 49 under Section 593 of the Companies Act, 1956, whereby the name of The Bank of Tokyo Ltd., was changed to The Bank of Tokyo-Mitsubishi Ltd., w.e.f. 1.4.1996 and no fresh certificate for establishment of place of business was required to be issued vide Exhibit-B to Annexure-J. the requisite fees in respect of Form No. 49 was also paid by the Bank on 14.8.1996 as nee Exhibit A to Annexure-J.

3. At this stage, it is pertinent to mention that UFJ Bank Ltd., a Banking Company registered under the laws of Japan merged its global operations with The Bank of Tokyo-Mitsubishi, Ltd., and accordingly the merged Bank's Indian operations took effect from 1.1.2006 and post-merger, the petitioner-Bank has been re-named as The Bank of Tokyo-Mitsubishi UFJ, Ltd., The RBI by letter dated 26.12.2005 informed the petitioner regarding change of name from The Bank of Tokyo-Mitsubishi Ltd., to The Bank of Tokyo-Mitsubishi UFJ Ltd., Vide Exhibit 'A' to Annexure-H, Exhibit 'B' to Annexure-H is a letter dated 27.12.2005 issued by the RBI to the petitioner forwarding two notifications dated 26.12.2005 recording the change of name and Exhibit 'C' to Annexure-H is the letter dated 28.12.2005 forwarded to the petitioner by the RBI inviting modifications of the name of the Company in the original license.

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