M/s KIMS Health Executive Leisure Pvt. Ltd. v. Village Officer, Attipra Village, Kazhakuttom, Tahsildar Thiruvananthapuram Taluk, District Collector Thiruvananthapuram, and Special Government Pleader

**‘CR’** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 ``` ## **`WP(C) NO. 28043 OF 2022`** ## **`PETITIONER:`** ## **`M/S. KIMSHEALTH EXECUTIVE LEISURE PVT.LTD.`** ``` REPRESENTED BY ITS DIRECTOR MR. T.M. BIJU, P.B. NO. 1, ANAYARA, THIRUVANANTHAPURAM, RESIDING AT TC 68/885, THOTTAPPILLIL VEEDU, ASHOK NAGAR, PACHALLOOR PO, TRIVANDRUM-695027. ``` ``` BY ADVS.S.SREEKUMAR (SR.) M.SREEKUMAR A.ABDUL KHARIM ``` ## **`RESPONDENTS:`** ``` 1THE VILLAGE OFFICER ATTIPRA VILLAGE, KAZHAKUTTOM P.O., THIRUVANANTHAPURAM-695582. 2TAHSILDAR, THIRUVANANTHAPURAM TALUK, NEAR EXCISE OFFICE, EAST FORT, PAZHAVANGADI P.O., THIRUVANANTHAPURAM- 695023. 3DISTRICT COLLECTOR, THIRUVANANTHAPURAM CIVIL STATION, MANNANTHALA ROAD, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM – 695043. SPECIAL GOVT. PLEADER SRI.JAFAR KHAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.03.2024,THE COURT ON 04.06.2024 DELIVERED THE FOLLOWING: ``` wp(c) No.28043 of 2022 2 ## **C.R.** ## **VIJU ABRAHAM, J.** **................................................................. W.P (C) Nos. 28043 of 2022 .................................................................** Dated this the 4[th] day of June, 2024 ## **JUDGMENT** The above writ petition has been filed challenging Exts.P9 and P13 and for a direction to the 2[nd] respondent to change the name of the petitioner company in the revenue records in tune with Ext.P5 certificate of incorporation pursuant to change of name. 2. Brief facts necessary for the disposal of the writ petition are as follows: Petitioner is a company incorporated under the Companies Act, 1956 and represented by its Director. It is averred that an extent of 40.46 Ares equivalent to one acre of land comprised in old survey nos.960(A), 960(B) and 961(1) in block no.17, re-survey no.235/8 of Attipra Village was purchased by M/s.Kenton Leisure Services Pvt. Ltd. as per Ext.P1 sale deed no.1005/99 of SRO, Kazhakkoottam dated 27.04.1999. The said company also purchased an extent of 4.55 Ares equivalent to 11.250 cents in old survey no.961/1 and in block no.17 and re-survey no.235/7 as per Ext.P2 sale deed no.1006/99 of SRO, Kazhakkoottam dated 27.04.1999. wp(c) No.28043 of 2022 3 The aforesaid company has effected mutation and paying land tax for the property found on measurement in the re-survey, ie., 40.10 Ares in resurvey no.235/8 and 2.88 Ares in re-survey no.235/7-1 in T.P.No.7036 of Attipra Village as evident from Ext.P3. The said company is also paying property tax for the building in the said property bearing door no.98/3604 as evident from Ext.P4. The name of the said company, viz., Kenton Leisure Services Pvt. Ltd. was changed to M/s.KIMS Health Executive Leisure Pvt. Ltd. as per Ext.P5 certificate of incorporation dated 17.02.2022 issued by the Registrar of Companies, Ernakulam. Petitioner in the above circumstances submitted Ext P6 to P8 representations dated 30.07.2022 before respondents 1 and 2 and also before the Tahsildar (Land Records) for change of name of pattadar of the aforesaid property in the revenue records in tune with Ext.P5. The 1[st] respondent however issued Ext.P9 notice dated 10.08.2022 declining to effect change of name raising unsustainable contentions. According to the 1[st] respondent, the petitioner had purchased only the shares of M/s.Kenton Leisure Services Pvt. Ltd. and for effecting mutation in favour of the petitioner in accordance with the Transfer of Registry Rules, 1966, a sale deed transferring the properties in the name of the petitioner is required and action would be taken on the request in the event of production of such sale deed. It is contended that the wp(c) No.28043 of 2022 4 said stand taken by the 1[st] respondent is absolutely arbitrary and illegal. Ext.P5 certificate is an authority for change of name of the petitioner in the revenue records and respondents are bound to effect changes in accordance with Ext.P5. It is contended that the issue is settled by the judgment in **Park Residency v. State of Kerala, 2013 (1) KLT 855** as well as Exts.P10 and P11 judgments. This Court as per Ext.P12 interim order directed the 2[nd] respondent to consider and pass orders on Ext.P7 application in the light of the judgments referred above but the 2[nd] respondent rejected the application as per Ext.P13 order. The finding in Ext.P13 order that though the properties of M/s.Kenton Leisure Services Pvt. Ltd. has been transferred in the name of M/s.KIMS Health Executive Leisure Pvt. Ltd., no document has been produced to effect mutation as provided Rule 3(a) of the Transfer of Registry Rules, 1966 and the said stand is against the judgment in **Park Residency** ’s case cited supra and Exts.P10 and P11 judgments. 3. A detailed counter affidavit has been filed by the 2[nd] respondent wherein it is contended that as per the records, land having an extent of 40.46 Ares comprised in block no.17, re-survey no.235/8 and 235/7 of Attipra Village is under the ownership of Kenton Leisure Services Pvt. Ltd., which is obtained as per sale deed nos.1005/99 and 1006/99 of wp(c) No.28043 of 2022 5 Kazhakkoottam SRO. The aforesaid company had been paying tax with respect to the land mentioned above, under Thandaper No. 7036, up to 2021-2022. In order to effect change in the Thandaper account the petitioner has moved an application before the respondents seeking to change the name Kenton Leisure Pvt. Ltd. to KIMS Health Executive Leisure Pvt. Ltd. in Thandaper No.7036. On verification of the documents produced by the petitioner, it is seen that the immovable property of Kenton Leisure Pvt. Ltd. including 40.46 Ares of property comprised in Re-Survey Nos. 235/7 and 235/8 of Attipra Village have been transferred to another company viz., KIMS Health Executive Pvt. Ltd. by way of transfer of shares. In response to the application of the petitioner, the authority granted an opportunity to the petitioner to address their grievance. During the course of hearing, it was stated that there is no pre-existing company called KIMS Health Executive Pvt. Ltd. and added that only the name has been changed. After perusing the documents, it is clear that the immovable property of Kenton Leisure Pvt. Ltd. was transferred in the name of KIMS Health Executive Pvt. Ltd. However, the applicant has failed to produce any valid documents before the respondents as stipulated in Rule 3(a) of the Transfer of Registry Rules, 1966. It is submitted that a change of name can be done only through the process of Transfer of Registry. Accordingly, Order No.H6- wp(c) No.28043 of 2022 6 23708/22 dated 05.12.2022 was issued rejecting the application on the ground that the applicant had failed to produce valid documents stipulated in Rule 3 (a) of Transfer of Registry Rules, 1966. 4. I have heard the learned Senior Counsel appearing for the petitioner and also the learned Senior Government Pleader appearing for the Revenue Department. 5. Rule 2 of the Transfer Registry Rules, 1966 mandates that the transfer of Revenue Registry takes place either (1) by voluntary action of the owners. (2) by virtue of decrees of civil courts or by revenue sales and (3) by succession and Rule 3 deals with the procedure to be followed for effecting transfer of registry in the above three kinds of transfer. Since this is a case of change of name of the company as permitted by the Registrar of Companies as evident from Ext.P5 certificate, there is no transfer as provided in Rules 2 and 3 of the Transfer Registry Rules, 1966. 6. In the present case, there is a change of name of the company as evident from Ext.P5 certificate. Section 13 (2) and (3) of the Companies Act, 2013 deals with change of name of a company, which is extracted below: ## _“_ _**13. Alteration of memorandum.** - .............._ _(2) Any change in the name of a company shall be subject to the provisions of sub-sections (2) and (3) of section 4 and shall not have_ wp(c) No.28043 of 2022 7 _effect except with the approval of the Central Government in writing: Provided that no such approval shall be necessary where the only change in the name of the company is the deletion therefrom, or addition thereto, of the word ― “Private”, consequent on the conversion of any one class of companies to another class in accordance with the provisions of this Act._ _(3) When any change in the name of a company is made under subsection (2), the Registrar shall enter the new name in the register of companies in place of the old name and issue a fresh certificate of incorporation with the new name and the change in the name shall be complete and effective only on the issue of such a certificate. ..............”_ 7. A perusal of Ext.P5, which is the certificate of incorporation issued by the Registrar of Companies would show that the same was issued as per Rule 29 of the Companies (Incorporation) Rules, 2014 and the said Rule reads as follows: _**“29. Alteration of Memorandum by change of name.** - (1) The change of name shall not be allowed to a company which has defaulted in filing its annual returns or financial statements or any document due for filing with the Registrar or which has defaulted in repayment of matured deposits or debentures or interest on deposits or debentures. (2) An application shall be filed in Form No.INC.24 along with the fee for change in the name of the company and a new certificate of incorporation in Form No.INC.25 shall be issued to the company consequent upon change of name.”_ It is also pertinent to take note of Section 368 of the Companies Act, 2013 wp(c) No.28043 of 2022 8 ## which reads as follows: _“_ _**368. Vesting of property on registration.** — All property, movable and immovable (including actionable claims), belonging to or vested in a company at the date of its registration in pursuance of this Part, shall, on such registration, pass to and vest in the company as incorporated under this Act for all the estate and interest of the company therein.”_ As per the said provision, all properties movable and immovable belonging to or vest in the company at the date of registration shall on registration pass to and vest in the company as incorporated under the Act for all the estate and interest of the company therein. So it is a case of automatic vesting of all the properties movable and immovable in the name of the company. After such registration what is now being done is only a change of name which was allowed as per Ext.P5 after following all the procedural formalities. 8. In **Park Residency** ’s case cited supra this Court was dealing with an issue wherein a partnership firm in the name M/s Maria Residency was reconstituted by inducting two new partners and the firm name was changed to M/s Park Residency. Thereafter, the Thasildar was approached for affecting mutation and the same was rejected taking a stand that the property cannot be mutated as there is no document of conveyance of wp(c) No.28043 of 2022 9 property and what is involved is the reconstitution of the partnership by inducting two partners and change of firm’s name and for effecting transfer of registry, there should be a voluntary transfer. Paragraphs 4, 12, 13, 14, and 15 of the judgment read as follows: _“4. The Tahsildar was approached by filing an application for mutation in favour of M/s. Park Residency, which was rejected by Ext.P1 order. The same was challenged before the District Collector by filing a revision petition and the final order is produced as Ext.P12. The authorities have taken the view that the application for mutation cannot be allowed as there is no document of conveyance of property and what is involved is the reconstitution of the partnership by inducting two partners and change of Firm’s name and the same do not come within the purview of Transfer of Registry Rules. For effecting transfer of registry, voluntary transfer is required_ . ………...... …………. .................. _12. The stand taken by the respondents in the counter affidavit is that transfer of registry as per R.2 of the Transfer of Registry Rules, takes place either by (i) voluntary action or will, (ii) by virtue of decree of civil courts or by revenue sales and (iii) by succession. The change of name of the firm as Park Residency from M/s. Mariya Residency will not in any way effect transfer of the land. Learned Government Pleader therefore submits that the Transfer of Registry Rules will not apply here._ _13. Of course, the plain terms of the Transfer of Registry Rules do not envisage a situation like this, where the properties of the partnership after reconstitution is statutorily vested in the reconstituted partnership under a new name. There are no other procedures prescribed apart from the Transfer of Registry Rules to effect_ wp(c) No.28043 of 2022 10 _mutation. When we consider the effect of S.14 of the Partnership Act, it can be seen that the property herein belongs to the reconstituted partnership firm. It is by operation of law. All the legal formalities before the Registrar of Firms have been completed also. In a matter like this, when the firm is reconstituted, there need not be a registered document for the properties to be held in the name of the partnership. Going by the decision of this Court in George’s case (2010 (2) KLT 692), registration is required only in a case where the retired partners convey their individual immovable property to the partnership or the continuing partners in their individual capacity. Such is not the case here. Therein, this Court had also held that even in the case of conversion of individual partner’s property into that of the partnership or vice versa, it is only the intention of the parties which is relevant and no document registered or otherwise, is necessary. This will also support the case of the petitioner herein that no registered document is required for earmarking the properties owned by M/s.Maria Residency in the name of M/s. Park Residency. The deed of amendment itself contains various clauses in that regard which brings out the intention of the parties and the same will therefore be sufficient._ _14. In a matter like this, where it requires the transfer of registry in a situation like this, the absence of a specific provision under the Transfer of Registry Rules need not deter the authorities from accepting the application and acting upon it. There is no prohibition under the rules also. By the operation of law, the firm under a new name continues to be the owner of the immovable properties. Therefore, the owner has got every right to get mutation of the properties in its name. Otherwise, the petitioner will be left out without any remedies in spite of the fact that the firm has been reconstituted and the property also stands in its name._ _15. Therefore, the Writ Petition is allowed. It is declared that the petitioner firm is the owner of the properties covered by clause 3(a) in_ wp(c) No.28043 of 2022 11 _Ext.P8 and substituted by clause 8 in Ext.P13 after reconstitution of the firm. The items of properties described therein, being held by M/s. Park Residency, they are entitled for effecting mutation. Accordingly, Exts.P1 and P12 are quashed. In the light of the declaration made as above, there will be a direction to the Tahsildar to grant mutation in the name of the petitioner firm in respect of the properties within a period of one month from the date of production of a certified copy of this judgment and the changes will be effected in the Thandaper account accordingly. No costs.”_ _(underline supplied)_ 9. In **Groupe Seb India Private Limited and Ors. vs. State of Himachal Pradesh and Ors, MANU/HP/2068/2023** , the High Court of Himachal Pradesh was considering a challenge against the stipulation that stamp duty and registration fees are chargeable while granting permission for change of name of the company. In that case, the name of the company was changed as per the provisions of the Companies Act. The court after considering various judgments on the point including the Division Bench judgment of the Himachal Pradesh High Court in **JSTI Transformers Pvt. Ltd. vs. The State of Himachal Pradesh and Ors, MANU/HP/1804/2022** held that the change of name of the company as per the provisions of the Companies Act does not involve the transfer of assets and therefore there is no obligation to pay stamp duty and registration fee. In **JSTI Transformers Pvt. Ltd.** case cited supra, after the change of name of the company duly approved by the Registrar of Companies, an application was submitted for wp(c) No.28043 of 2022 12 effecting changes in the revenue records and the same was allowed on condition that the petitioner would be required to pay stamp duty and registration fee on the value of assets of the petitioner upon change of name. The said condition was challenged in the said writ petition and the court after considering the issue in detail set aside the said condition on entering a finding that stamp duty and registration fees cannot be levied upon conversion of a partnership firm to an LLP for change of name in the revenue records. Though the said decision in **JSTI Transformers Pvt. Ltd.** was challenged before the Apex Court in S.L.P. (Civil) Diary No.5526 of 2023, the same was dismissed as per the order dated 13.04.2023. 10. Though the learned Government Pleader relied on the judgment in **Reckitt Benckiser (India) Pvt Ltd. V. State of H.P and Others, 2020 KHC** **3908** in support of his contention, it is pertinent to note that the said judgment was considered in **Groupe Seb India Private Limited** ’s case cited supra to hold that change of name in the revenue records consequent to the change of name of the company as permitted by the Registrar of Company does not mean transfer of assets and therefore there is no obligation to pay stamp duty and registration fee. In the operative portion of the **Reckitt Benckiser (India) Pvt Ltd.** ’s case cited supra, it is held that since no transfer of assets occurred on account of change of name of the wp(c) No.28043 of 2022 13 petitioner company, neither stamp duty nor registration charges are payable on such change of name and its name is required to be entered in the revenue records. The judgments cited supra categorically held that merely on a change of name of the company, no transaction/sale of property takes place and for recording the change of name in the revenue record, no stamp duty is chargeable. 11. This Court in Ext.P10 judgment in W.P(C) No.19910 of 2011 while considering a challenge against an order declining change of name in the revenue records in accordance with the change of name of a company stating the reason that there is no reference to assets of the company in the certificate of incorporation has held that the said stand taken by the revenue authorities is unsustainable and directed to make necessary changes in the revenue records based on the change of name as per the fresh certificate of incorporation. A similar view was taken in Ext.P11 judgment in W.P (C) No.32497 of 2014. It is pertinent to note that in **Park Residency** ’s case cited supra also, the court considered the issue and held that the immovable properties continue to be the property of the reconstituted firm and that even if Rules 2 and 3 of Transfer of Registry Rules, 1966 do not envisage a transfer or change of name as in the present case, it will not deter the authorities from accepting the application and acting upon it. wp(c) No.28043 of 2022 14 In view of the above facts and circumstances, I am of the opinion that the stand taken in Exts.P9 and P13 cannot be accepted and the same is liable to be interfered with. Accordingly, Exts.P9 and P13 are set aside with a consequential direction to the 2[nd] respondent to change the name of the petitioner company in the Revenue Records in tune with Ext.P5 as requested in Ext.P7, without any delay at any rate within an outer limit of one month from the date of receipt of a copy of the judgment. The writ petition is allowed as above. **Sd/VIJU ABRAHAM** **JUDGE** cks wp(c) No.28043 of 2022 15 ## **`APPENDIX OF WP(C) 28043/2022`** ## **`PETITIONER EXHIBITS`** - **`Exhibit P1 TRUE COPY OF SALE DEED NO.1005/99 OF SUB REGISTRY OFFICE, KAZHAKKOOTTAM DATED 27.04.1999.`** - **`Exhibit P2 TRUE COPY OF SALE DEED NO.1006/99 OF SUB REGISTRY OFFICE, KAZHAKKOOTTAM DATED 27.04.1999.`** - **`Exhibit P3 TRUE COPY OF TAX RECEIPT NO.KL01010206901/2021 DATED 20.09.2021`** - **`Exhibit P4 TRUE COPY OF TAX RECEIPT NO.0962280 DATED 23.2.22 ISSUED BY THE CORPORATION OF THIRUVANANTHAPURAM.`** - **`Exhibit P5 TRUE COPY OF CERTIFICATE OF INCORPORATION DATED 17.02.2022 ISSUED BY THE REGISTRAR OF COMPANIES.`** - **`Exhibit P6 TRUE COPY OF REPRESENTATION DATED 30.07.2022 FILED BY PETITIONER BEFORE THE 1ST RESPONDENT ALONG WITH TYPED COPY.`** - **`Exhibit P7 TRUE COPY OF REPRESENTATION DATED 30.07.2022 FILED BY PETITIONER BEFORE THE 2ND RESPONDENT ALONG WITH TYPED COPY.`** - **`Exhibit P8 TRUE COPY OF REPRESENTATION DATED 30.07.2022 FILED BY PETITIONER BEFORE THE TAHSILDAR (LR) ALONG WITH TYPED COPY.`** - **`Exhibit P9 TRUE COPY OF NOTICE NO. 1829 DATED 10.8.2022 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.`** - **`Exhibit P10 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN WPC.NO.19910/2011 DATED 13.10.2014.`** - **`Exhibit P11 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN WPC.NO.32497/2014 DATED 12.12.2014.`** - **`Exhibit P12 TRUE COPY OF ORDER OF THIS HON'BLE COURT DATED 30..08..2022 IN WP©NO.28043/2022`** - **`Exhibit P13 TRUE COPY OF THE ORDER NO.H6-23708/2022 DATED 11..01..2023 OF THE 2ND RESPONDENT`**