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. 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. 4. the respondent is a Public Limited Company incorporated under the Companies Act of India and had an account with the petitioner-Bank and was from time to time availing various Banking facilities from the petitioner-Bank. One of the Credit Facilities sanctioned by the petitioner to the respondent was Commercial Bill Discounting facility. During the course of availing the said facility, the respondent had forwarded to the petitioner, one Bill of Exchange valued at Rs. 10 lakhs drawn by the respondent and accepted by one Indital Construction Machinery Ltd., for payment on the due date duly endorsed for payment to the petitioner and other related papers. the respondent had also forwarded to the petitioner one Bank Guarantee valued at Rs. 40 lakhs issued by the State Bank of India addressed to the petitioner to the account of the respondent. the respondent had also authorised the petitioner to make a demand on the said Bank Guarantee deposited by it with the petitioner as a security for the discount of Commercial Bills in favour of the respondent, if payment due on the Commercial Bills was not received by the petitioner an the respective due dates. the discounted amount under the Bill of Exchange wan credited by the petitioner to the account of the respondent. On the due date the remittance was required to be made by a Cheque issued by the acceptor of the Bills of Exchange directly to the account of the respondent with the petitioner. 5. the discounted amount under the Bill of Exchange wan credited by the petitioner to the account of the respondent. On the due date the remittance was required to be made by a Cheque issued by the acceptor of the Bills of Exchange directly to the account of the respondent with the petitioner. 5. Since the petitioner did not receive the amount due on behalf of the respondent as also on its own behalf as the beneficiary, the petitioner invoked the Bank Guarantee and made a demand for payment of the Principal aggregate sum of Rs. 40 lakhs. According to the petitioner, it did not receive the amount demanded. 6. It appears that Indital Construction Machinery Ltd., the acceptor of the Bill of Exchange had addressed two letters dated 22.7.1997 and 23.7.1997 to the petitioner, interalia, stating that they had informed the respondent about the difficulty in completing the contract between them and had therefore returned the amount of Rs. 40 lakhs to the respondent on 23.4.1997. Subsequently, the respondent had received the money from the petitioner by discounting the Bill of Exchange as also the respondent collected the money due from the accepter. According to the petitioner, on account of the defaulted payment of amount due on Bill of Exchange, the acceptor as also the respondent became liable to pay to the petitioner the amount due on the Bill of Exchange. Since the petitioner did not receive payment form the respondent or under the Bank Guarantee, the respondent became liable to the petitioner. The petitioner, besides the Bank guarantee, had also other securities from the respondent from which the petitioner realised the principal sum due. But since the interest on the Principal sum was not received by the petitioner from July 1999, Original Application No. 327/2000 (which is the subject matter of W.P. No. 12303/06) wee filed by the petitioner against the respondent, Indital Construction Machinery Ltd., and State Bank of India for recovery of Rs. l6,13,589.04 paise being balance Interest due and payable by the respondent and further sum of Rs. 1,92,873.43 paise being the difference in the contractual rate of interest and statutory rate of Interest due from the respondent. Annexure 'A' is the copy of the Original Application No. 327/2000. 7. Similarly, the respondent had forwarded to the petitioner two bills of exchange for an aggregate value of Rs. 1,92,873.43 paise being the difference in the contractual rate of interest and statutory rate of Interest due from the respondent. Annexure 'A' is the copy of the Original Application No. 327/2000. 7. Similarly, the respondent had forwarded to the petitioner two bills of exchange for an aggregate value of Rs. 50 lakhs drawn by respondent and accept ad by one Kirloskar AAD Limit ad for payment on the due date duly endorsed for payment to the petitioner the respondent had also furnished to the petitioner two bank guarantees for an aggregate value of Rs. 50 lakhs issued by the State Bank of India addressed to the petitioner to the account of the respondent. On the due date, the petitioner did not receive the amounts due. In the circumstances, the petitioner, on behalf of the respondent, had also on its own behalf as the beneficiary, revoked the bank guarantees referred to above and made a demand for principal aggregate of Rs. 50 lakhs. According to the petitioner, it did not receive the amount deposited. 8. it appears that M/s. Kirloskar AAF Limited, the acceptor of the bills of exchange addressed a letter dated 1.7.1997 to the State Bank of India and forwarded a copy thereof to the petitioner, inter alia, alleging that the obligations under the batik guarantees were settled long hack and respondent was therefore to advise the petitioner for reconciliation of the hank, guarantee transact ion and to a end letter withdrawing revocation of guarantee letters to the State Bank of India. Subsequently, the respondent received the money from the petitioner by discounting the bill of exchange as also upon the due date the respondent had collected the money due from the acceptor tout had not deposited the same in its account with the petitioner. The petitioner, besides the hank guarantees, also had other securities from the respondent from which the petitioner released the principal sum due but since the interest on the principal sum was not received by the petitioner, Original Application No. 326/2000 (which is the subject matter of W.P. No. 12304/06) was filed by the petitioner against the respondent, Kirloskar AAF Limited and Stats Bank of India for recovery of Rs. 16,042,19.18, being the balance interest due and payable by then and a further sum of Rs. 1,97,761.75 being the difference in the contractual rate of interest and statutory rate of interest due from the respondent. 16,042,19.18, being the balance interest due and payable by then and a further sum of Rs. 1,97,761.75 being the difference in the contractual rate of interest and statutory rate of interest due from the respondent. Annexure-A to W.P. No. 12304/2006 is a copy of the Original Application No. 326/2000. 9. For the sake of convenience, the documents common to both the writ petitions and annexed to W.P. No. 12303/2006 have been referred to. 10. In the said Original Applications, the respondent filed an Interim Application No. 4/2002 under Section 19(23) and Section 2(d) of the Recovery of Debts due to Bank and Financial Institutions Act, 1993 ('DR Act', for shorts raising a plea with regard to the maintainability of the original application and praying that the said issue be framed and decided as a preliminary issue on the ground that the Bank was not eligible to file the original applications on account of non-compliance with the provisions of Sections 592 and 593 of the Companies Act, 1956. Annexure 'B' is the copy of the said Interim Application filed by the respondent. In response to the said application filed by the respondent, the petitioner filed its reply. A copy of the reply of the petitioner dated 18.12.2002 along with the exhibits is produced as Annexure 'C' to the writ petition. 11. After bearing both sides on the Interim Application DRT Bangalore by its order dated 14.3.2003 dismissed the same by observing as follows: ...The Learned Counsel for the Petitioner tried to go behind these document a and challenge their conclusiveness. I think this course is not open to him a specially in this forum as most of these documents on their very face show as being issued in exercise of the powers contained in various provisions of the Companies Act and Banking Regulation Act. It is amply clear frost Exhibit A to F originating from the Reserve Bank of India that what was The Bank of Tokyo, Ltd., cams to be renamed as The Bank of Tokyo-Mitsubishi, Ltd., the Applicant herein. So the status that was being enjoyed by the Bank of Tokyo, Ltd., is statutorily accorded to the present Applicant notwithstanding the change in the name. The Learned Counsel for the Petitioner triad to assail the genuineness or otherwise of the documents adverted to supra, which were rightly relied upon by the Respondent. So the status that was being enjoyed by the Bank of Tokyo, Ltd., is statutorily accorded to the present Applicant notwithstanding the change in the name. The Learned Counsel for the Petitioner triad to assail the genuineness or otherwise of the documents adverted to supra, which were rightly relied upon by the Respondent. I am afraid such a line of argument does not lie in the mouth of the Petitioner and certainly not within the jurisdiction of this Tribunal.... A copy of the order dated 14.3.2003 is produced as Annexure 'D' to the writ petition. 12. Being aggrieved by the said order, the respondent preferred appeal being M.A. No. 82/2005 end M.A. No. 83/2005 before the DKAT, Chennai and the copy of the Memorandum of Appeal is produced as Annexure 'E' to the writ petition. That in the course of the hearing of the Appeal, the petitioner end the respondent made oral and written submissions. The respondent also filed documents, which were not before the DRT. The respondent had sought to raise questions regarding: (a) Effect of Merger; (b) Subsequent registration of Form No. 49, and (c) Fraud in the registration of Form No. 49. But, during the course of arguments, the issues were related only to (a) & (b) supra and it was observed that Complaint and mat tars relating to alleged fraud in registration of Form No. 49 were already before the Registrar of Companies, NCT of New Delhi & Haryana and also before the Addl. Chief Metropolitan Magistrate, Mumbai in a complaint filed in this regard by the respondent and it would be outside the purview of the Tribunal to deliberate on the said issue. Before the DRAT, the petitioner had also pointed out two Certificates issued by the Registrar of companies dated 24.8.2004 recording the compliance with the provisions of Companies Act, 1996. On the two issues referred to at (a) and (b) above, the DRAT (sic) the following three points for consideration: a. Whether the 'The Bank of Tokyo Ltd.' has merged with the Mitsubishi Bank, Limited, and became a new entity i.e., 'The Bank of Tokyo-Mitsubishi, Ltd. or it is only a change of name of 'The Bank of Tokyo, Ltd. as 'The Bank of Tokyo-Mitsubishi, Ltd. b. Whether compliance is required under Section 592 of 593 of the Companies Act, 1956. c. Whether the subsequent Registration of Form No. 49 In the year 2004, In respect of merger took place in the year 1997 and 1998, would cure the defect. 13. In the above three points, the following evidence was on the file of DRAT: a. License No. BLC 9/53 dated 81th May 1933 issued by Reserve Bank of India, Department of Banking Operations In exercise of the power conferred upon the Reserve Bank of India by Suction 23 of The Banking Companies Act, 1949 (now call ad as The Banking Regulations Act, 1949) authorising the Bank of Tokyo Ltd., to open a branch at Bombay subject to the conditions mentioned in the letter dated 8th May 1953 addressed by Deputy Chief Officer, Reserve Bank of India. This licence has been amended on 14th August 1996 and the name "The Bank of Tokyo, Ltd." was scored on the licence and in its place the name of the Petitioner as it then was namely The Bank of Tokyo-Mitsubishi, Ltd. has been incorporated. the amended licence, as aforesaid, in annexed and marked as Exhibit D to the Reply dated 18th December 2002 filed by the Petitioner before the Hon'ble DRT Bangalore (Annexure-C). b. Letter dated 30th March 1996, from Reserve Bank of India recording approval for change of the name of "The Bank of Tokyo, Ltd." an "The Bank of Tokyo-Mitsubishi, Ltd." upon merger of the 'The Bank of Tokyo, Ltd.', and 'The Mitsubishi Bank, Limited' with effect from 1st April 1996. Said letter is annexed and marked as Exhibit E to the Reply dated 18th December 2002 filed by the Petitioner before the Hon'ble DRT Bangalore.(Annexure-C) c. The Gazette of India dated 27th April 1996, publishing Notification issued by the Department of Banking Operations and Development, RBI directing for the words "The Bank of Tokyo, Ltd." to be substituted with the words "The Bank of Tokyo-Mitsubishi, Ltd." Said Gazette is marked as Exhibit F to the Reply dated 18th December 2002 filed by the Petitioner before the Hon'ble DRT Bangalore. (Annexure-C) d. Form No. 49 dated 23rd July 1996 filed by the Petitioner with the Registrar of Companies, New Delhi and Haryana as required under Section 593 of the Companies Act, 1956 whereby the Petitioner has put on record that at the meeting of the share holders held at Tokyo on 29th June 1995, a Resolution was passed authorising change of name/Articles of Incorporation with effect from 1st April 1996. With this Form, was also filed as required and stated in the form, copy of the amended Articles of incorporation and list of Directors of the Petitioner. A copy of the said Form is annexed and marked as Exhibit H to the Reply dated 18th December 2002 filed by the Petitioner before the Hon'ble DRT Bangalore. (Annexure-C) e. Letter dated 3th April 2002 issued by Deputy registrar of Companies, National Capital Territory (NCT) of Hew Delhi and Haryana addressed to the Petitioner with reference to Form No. 49 referred herein above recording that it was filed on 5th August 1996 and pursuant thereto name was being changed from 'The Bank of Tokyo, Ltd.' to 'The Bank of Tokyo-Mitsubishi, Ltd.' under Section 593 of the Companies Act, 1996 with effect from 1st April 1996. Said letter is annexed and marked as Exhibit I to the Reply dated 18th December 2002 filed by the Petitioner before the Hon'ble DRT Bangalore. (Annexure-C) 14. After considering the oral argument Eas well as the written submissions of the partita, the DRAT, Chennai concluded that the petitioner had not complied with Section 592, Part IX of the Companies Act and accordingly disposed of by a common order dated 19.10.2005, M.A. Nos. 82 and 83/2005. The petitioner thereafter filed Review Petition before DRAT, Chennai against the common order and Annexure 'G' is the copy of the said review petition. By an order dated 17.1.2006, DRAT, Chennai, stayed the operation of its order dated 19.10.2005 and the said order of stay was continued from time to time till final disposal of the review petition. 15. In the said review petition, the petitioner filed I.A. No. 40/2006 for amendment of the cause title in the review petition and Annexure 'H' is a copy of I.A. No. 40/2006. 15. In the said review petition, the petitioner filed I.A. No. 40/2006 for amendment of the cause title in the review petition and Annexure 'H' is a copy of I.A. No. 40/2006. According to the petitioner, its name at the time of commencement of the Appeal namely, 'The Bank of Tokyo-Mitsubishi Limited' had been changed as 'The Bank of Tokyo-Mitsubishi UFJ, Ltd.,' w.e.f. 1.1.2006 consequent upon merger of UFJ, Bank under the Laws of Japan and the RBI had noted the said merger and the name change, vide, its letter dated 26.12.2005 and the sane was also published in the Official Gazette and thereby w.e.f. 1.1.2006, the official license of the RBI given to The Bank of Tokyo-Mitsubishi UFJ, Ltd., was issued on 12.1.2006 and these documents were placed on record before the DRAT, Chennai along with I.A. No. 40/2006. The petitioner also filed I.A. No. 42 for bringing on record additional documents referred to in the said application and annexed to the said application as Exhibits. Annexure 'J' is the copy of I.A. No. 41. The following documents were annexed to I.A. No. 41 (Annexure-J) as under: a. Computerized Receipt dated 5th August 1996 issued by Registrar of Companies, NCT Delhi and Haryana recording receipt of fees paid in cash for filing of form No. 49 dated 23rd July 1996. (Ex-A) b. Latter dated 24th August 2004 from Registrar of Companies to the Petitioner. This letter records registration of The Bank of Tokyo, Ltd. under Sl. No. F-202 and that consequent upon the merger and filing and registration of Form No. 4 9 under Section 593 of the Companies Act, 1956, the name The Bank of Tokyo, Ltd. changed to The Bank of Tokyo-Mitsubishi, Ltd. with effect from 1st April 1996. (Ex-B) c. Latter dated 2nd June 2005 from Registrar of Companies, NCT of Delhi and Haryana to the petitioner forwarding copy of Complaint letter dated 23rd April 2005 addressed by the Respondent to Registrar of Companies applying for deregistration of the Petitioner. (Ex-C) d. Copy of complaint dated 23.4.2005 made by the respondent to ROC, Delhi and Haryana. 16. The petitioner also filed I.A. No. 238/06 for raising additional grounds and Annexure 'K' is the copy of the said application filed along with writ petition. (Ex-C) d. Copy of complaint dated 23.4.2005 made by the respondent to ROC, Delhi and Haryana. 16. The petitioner also filed I.A. No. 238/06 for raising additional grounds and Annexure 'K' is the copy of the said application filed along with writ petition. The petitioner also filed I.A. No. 418/2006 for bringing on record, additional documents, namely., the order of the Registrar of Companies NCT of Delhi and Haryana dated 14.6.2006 recalled by the petitioner on 13.7.2006 closing the complaint of the respondent to de-register the petitioner as a Foreign Company under the Companies Act, 1956 stating that the petitioner had in fact complied with Section 592(ii) of the Companies Act stating that no further action was required in the matter. The said I.A. No. 418/2006 along with additional documents are annexed as to Annexure 'L' to the writ petition the petitioner filed written submissions before DRAT, Chennai which are annexed as Annexure 'F' to the writ petition. On 11.4.200B, during the course of submission, the learned senior Counsel fox the petitioner has furnished a letter dated 14.8.1996 written by the Reserve Bank of India from Calcutta to the petitioner regarding the change of name of the Bank of Tokyo Limited to The Bank of Tokyo-Mitsubishi Ltd., on amendment carried out in the original licence issued by the Reserve Bank of India to The Bank of Tokyo Ltd., The letter is extracted as follow: Reserve Bank of India Department of Banking Operations and Development 15, Netaji Subhas Road Post Box 2310 Calcutta-700001 14th August 1996 Ref. DBOD(Cal) No. 343/04.02.006/96-97 ... 19(Sake) By hand delivery The Regional Executive for India and General Manager The Bank of Tokyo-Mitsubishi Ltd., "Jaevan Frakash" Sir, P. Mehata Road, Fort Post Box No. 1762 Mumbai-400001 Dear Sir, Change of name of The Bank of Tokyo Ltd., "The Bank of Tokyo-Mitsubishi Ltd.," Please refer to the correspondence resting with your letter dated 15 May 1996 on the captioned subject. We return herewith the following documents duly amended: 1) Original licence No. BLC.9/53 dated 8 May 1933 pertaining to your Mumbai Branch. ii) Original licence No. BLC.24/62 dated 12 March 1962 pertaining to your New Delhi branch and iii) Original covering letter DBO. Lic. No. 4118/Insp.52 dated 17 November 1932 pertaining to licence No. Cal.12/52 dated 17 November 1952 for carrying on banking business in India. 2. ii) Original licence No. BLC.24/62 dated 12 March 1962 pertaining to your New Delhi branch and iii) Original covering letter DBO. Lic. No. 4118/Insp.52 dated 17 November 1932 pertaining to licence No. Cal.12/52 dated 17 November 1952 for carrying on banking business in India. 2. Please not to submit the undernoted original documents to us for amendments immediately on being trace at your end: 1) Licence No. Cal.12/52 dated 17 November 1952. ii) Covering letter No. DBO.1422/14-53 dated 8 May 1953 pertaining to licence No. BLC.9/53 dated 8 May 1993 and iii) Covering letter No. DBO.913/BL.6-62 dated 12 March 1962 pertaining to licence No. BLC.24/62 dated 12 March 1962. Yours faithfully, (S. Govindarajan) Dy. General Manager Encls: 13 17. By order dated 19.10.2005, DBAT, Chennai rejected Review Petition Nos. 1 and 2 of 2006 and similarly, the Interlocutory Applications filed in the review petitions ware also rejected. Annexure 'N' is the copy of the order of DRAT, Channel dated 7.8.2006, dismissing the review petitions as well as interim applications filed by the petitioner. Being aggrieved by the order dated 19.10.2003 in Miscellaneous Appeal No. 83/2005 and order dated 7.8.2006 In Review Petition No. 2/2006 as well as the orders passed on IAs No. 40/06, 42/06, 238/06 and 418/06, the petitioner has filed W.P. No. 12303/2006. Similarly, being aggrieved by order dated 19.10.2005 in Appeal No. 82/2005 and order dated 7.8.2006 in Review Petition No. 1/2006 and Interim Application No. 39/06, W.P. No. 12304/2006 is filed. 18. We have beard the learned senior Counsel for the petitioner and the respondent and perused the Materials on record. 19. According to Sri Rajeev Nair for M/s. Holla and Holla, learned senior Counsel for the petitioner, The Bank of Tokyo was merged with The Mitsubishi Bank Ltd.,w.e.f. 1.4.1996 and the merger itself took place under the laws of Japan and in Japan and that there is no dispute about the merger of the two banks. Since the Bank of Tokyo had an established place of business since the year 1952 in India, necessary applications wars filed Under Section 593 of the Companies Act before ROC and also before the RBI, no as to comply with the requisite provisions of the two Acts namely, the Companies Act 1956 and the Banking Regulation Act 1949. Since the Bank of Tokyo had an established place of business since the year 1952 in India, necessary applications wars filed Under Section 593 of the Companies Act before ROC and also before the RBI, no as to comply with the requisite provisions of the two Acts namely, the Companies Act 1956 and the Banking Regulation Act 1949. Accordingly, the Registrar of Banks at RBI issued the certificates as wall as the notifications which are conclusive and therefore there has bean compliance with Section 593 of the Companies Act and this is not a case where Section 592 of the Companies Act was applicable. Reliance has been placed on Sections 37, 56 and 57 of the Indian Evidence Act in this context. It is further submitted that the fact that the two authorities were satisfied with the compliance made by the petitioner means that the question as to whether Section 592 of the said Act would apply in the ins tent case could not have been agitated in the proceedings before the DRT and therefore the DRT was right in dismissing the application filed by the respondent, but, the DRAT, Chennai was not correct in holding that the proceedings filed by the petitioner before the DRT tree not maintainable as it was hit by Section 599 of the Companies Act. It is also submitted by the learned senior Counsel for the petitioner that the DRAT had no jurisdiction to give a finding on the issue of merger or on the genuineness of the documents filed by the petitioner. It In also submitted that the respondent by making complaint to the Registrar of Companies in the context of an application not being tiled Under Section 592 of the companies Act implied that the respondent also understood that the DRAT, Chennai had no jurisdiction to give a finding on the merger of the Bank of Tokyo with the Mitsubishi Bank Ltd. 20. It is also brought to our notice that the respondent had borrowed in November-December 1996, subsequent to the merger and that the merge per se cannot ha disputed in these proceedings. Further the respondent has an outstanding debt of about Rs. It is also brought to our notice that the respondent had borrowed in November-December 1996, subsequent to the merger and that the merge per se cannot ha disputed in these proceedings. Further the respondent has an outstanding debt of about Rs. 87 crores and the petitioner has filed proceedings across the country, but on account of the technical stand takes by the respondent, the proceedings have been put on hold and as a result the petitioner has suffered a monetary loss. The learned senior Counsel for the petitioner has relied on a Judgment of the Apex Court in the case of United Bank of India Vs. Naresh Kumar and others, 1996 (6) SCALE 764 . 21. While elaborating the above contentions the learned senior Counsel for the petitioner has submitted that consequent upon the merger the business of Bank of Tokyo as it existed prior to 1.4.96 continued in existence established by operation of law and no new place of business an such was established and there was alteration as the Bank of Tokyo-Mitsubishi Bank Ltd., and no new place of business came in to existence. Under the circumstances Section 592 of the companies Act 1956 was not attracted or applicable to the facts and circumstances. The petitioner bank held a valid sanction/license from the RBI to conduct its business of banking since the year 1952 and when the merger took place between The Bank of Tokyo Ltd., and The Mitsubishi Bank Ltd., all papers related to merger were submitted to the RBI and approved for change of name of the petitioner to the "Bank of Tokyo - Mitsubishi Bank Ltd.," Accordingly, notification was issued Under Section 42(6)(c) of the RBI Act directing that under second schedule to the RBI Act. For the words "Bank of Tokyo Ltd., the words "Bank of Tokyo – Mitsubishi Bank Ltd.," be substituted. It is submitted that Registrar of Companies by his communication dated 24.8.2004 had certified that as per their office record consequent upon the merger of bank of Tokyo Ltd., and the Mitsubishi Bank Ltd., w.e.f. 1.4.1996 there was a change in name as the Bank of Tokyo – Mitsubishi Bank Ltd. 22. Per contra, Sri. It is submitted that Registrar of Companies by his communication dated 24.8.2004 had certified that as per their office record consequent upon the merger of bank of Tokyo Ltd., and the Mitsubishi Bank Ltd., w.e.f. 1.4.1996 there was a change in name as the Bank of Tokyo – Mitsubishi Bank Ltd. 22. Per contra, Sri. K.G. Raghavan, learned senior Counsel appearing for the respondent has contended that the issue in the instant case is in a narrow compass namely, as to whether there has been a failure on the part of the petitioner to comply with Section 592 of the Companies Act 1956 so as to attract the provisions of Section 599 of the said Act. He has submitted that there is no dispute that an amalgamation/merger took place in Japan between The Bank of Tokyo and The Mitsubishi Bank Ltd., w.e.f. 1.4.1996 and that The Mitsubishi Bank Ltd., had no place of business in India prior to the merger. On account of the merger, The Bank of Tokyo Ltd., was dissolved and a new entity called The Bank of Tokyo - Mitsubishi Bank Ltd.,, came Into existence mud since The Mitsubishi Bank Ltd., was establishing its business in India for the first time, compliance Under Section 592 of the Companies Act 1956 was mandatory and since in the instant case there has been non compliance with Section 592 of the said Act, the recovery proceedings are barred Under Section 599 of the said Act. 23. While elaborating his contentions, the learned senior Counsel has submitted that in the earlier part of 1996 The Bank of Tokyo Ltd., (dissolving company) got merged with The Bank of Mitsubishi Ltd., (existing company) in terms of an order of merger Approved by the Ministry of Finance, Japan by a letter dated 22.3.1996 and that In view of the merger of the said two entities, The Bank of Tokyo Ltd., was dissolved and the Bank of Mitsubishi Ltd., being a surviving bank/entity took up the said banking business carried out by the erstwhile the Bank of Tokyo Ltd., Annexures-R1 to R3 are railed upon by the respondent as the copies of the joint representation submitted by the said two companies, approval and grant communicated by Ministry of Finance, Japan respectively. According to the learned senior Counsel, pursuant to the said merger in the year 1996, the name of the surviving bank was changed to The Bank of Tokyo - Mitsubishi Bank Ltd., which commenced its banking operation in India in terms of the said merger approved by the Finance Ministry of Japan. Therefore, necessary permissions had to be obtained from the RBI and also compliance with Section 592 of the Companies Act was mandatory. Contradicting the stand taken toy the petitioner that there was a continuation of its business in India subsequent to merger, the learned senior Counsel for the respondent has submitted that the effect of merger was that altogether different legal entity was established and the Bank of Tokyo did not survive as a legal entity and once and for all, ceased to exist as a legal entity and as a banking company and therefore, the petitioner's stand that it continued its banking business despite the merger was not correct. According to him, the petitioner being a banking company within the meaning of Section 591 of the Companies Act, it was mandatory to have complied with the terms of Section 592 of the said Act. Since thin primary requirement under Section 592 of the Companies Act was not complied with by the petitioner the proceedings for recovery was barred under Section 599 of the said Act before the DRAT, Bangalore and hence the DRAT had rightly held in favour of the respondent. 24. It is further contended on behalf of the respondent that the petitioner had not placed sufficient material on record to show that the RBI had a auctioned scheme of amalgamation of merger of two banks and that the latter dated 30.3.1996 issued by the RBI (Ex.E to Annexure-D) was issued under the impression that the Bank of Tokyo was changing its name upon its merger with Mitsubishi Bank Ltd., and it did not realise that The Bank of Tokyo had been dissolved and that The Mitsubishi Bunk Ltd., was taking over the banking business of The Bank of Tokyo and that the said letter wan issued contrary to law and even if RBI had amended its statute by notification and notified petitioner bank to be a schedule bank would not authorise or confer arty right on the petitioner to enjoy benefits which wire conferred upon erstwhile The Bank of Tokyo. It is further submitted on behalf of the respondent that the petitioner had not produced any material to show that it had made an application to obtain a license under Section 22 of the Banking Regulation Act, 1949 from the RBI to establish and run the banking business in India and that the stand of the petitioner that it was merely a successor to The Bank of Tokyo and entitled, to use the said license of the erstwhile Bank of Tokyo is wholly unsustainable in law as the petitioner being entirely distinct, separate and Indian legal entity had to comply with the provisions of the Companion Act and the Banking Regulation Act. Assuming that the order made lay RBI was legal, the learned senior Counsel has contended that the compliance with the provisions of the Banking Regulation Act was not sufficient and that compliance with Section 592 of the Companies Act was also mandatory the merger had resulted in a birth of a new entity and therefore establishing of a place of business in India within the scope of Section 592 of the Companies Act. 25. The respondent has admitted that the petitioner has one of its branch offices, inter alia, in India and at the address appearing in the cause title which the petitioner has acquired pursuant to the merger of the two banking companies. But, it is the submission of the learned senior Counsel foe the respondent that the said branch office established by the erstwhile Bank of Tokyo become a new branch office in India within the scope of Section 591(1)(a) of the Companies Act as the erstwhile Bank of Tokyo is no longer in existence and hence the provisions of Section 22 of the Banking Regulations Act and also part XI of the Companies Act are attracted. It is also stated in the statement of objections that as against the order passed by the DRT-I, Mumbai dated 14.5.2002 on a similar issue, an appeal before the DRAT, Mumbai in Appeal No. 83/2002 has been filed by the respondent and the same is pending and therefore the order passed by DRT-I, Mumbai has not attained finality. It is also stated in the statement of objections that as against the order passed by the DRT-I, Mumbai dated 14.5.2002 on a similar issue, an appeal before the DRAT, Mumbai in Appeal No. 83/2002 has been filed by the respondent and the same is pending and therefore the order passed by DRT-I, Mumbai has not attained finality. It is further submitted that DUT, Bangalore was not bound by the administrative/ministerial acts of the Registrar of Companies and that the tribunal has the jurisdiction to examine as to whether Section 592 of the Companies Act was complied with or not in the instant case. According to the respondent, Form 49 filed by the petitioner before the ROC dated 23.7.1996 was to comply with the requirements of Section 593(c) of the Companies Act with regard to change in the directors and that the said form was filed on the footing that the petitioner was an existing foreign company and not as a different or distinct legal entity which is the actual position in law. 26. In reply, the learned senior Counsel for the petitioner has submitted that the letter of the RBI dated 14.8.1996 shows that the original entity continued which is a circumstance in favour of the petitioner to show that there was no establishment at a place of business in India tot the first time. It is also submitted that the respondent's reliance to Section 391 to 394 of the Companies Act 1956 which defines the scope of merger under Indian law is misconceived and in support of this the learned senior Counsel for the petitioner has celled upon the decision of the Apex Court in the case of Technip S.A. Vs. SMS Holding (Pvt.) Ltd. and Others, JT (2005) 5 SC 506. It is also stated that the respondent had challenged RBI's action in instant proceedings and that the challenge made by the respondent before the Registrar of Companies was not successful In view of the fact that the Registrar of companies has held that Section 593 of the said Act has been complied implying thereby that the petitioner was not establishing its business in India foe the first time. The points for consideration in this case are as follows: 1. The relevant law of merger applicable in the instant case. 2. The effect of merger of the Bank of Tokyo with the Bank of Mitsubishi Ltd., 3. The points for consideration in this case are as follows: 1. The relevant law of merger applicable in the instant case. 2. The effect of merger of the Bank of Tokyo with the Bank of Mitsubishi Ltd., 3. The of fact of approvals/sanctions given by the RBI and ROC under the Reserve Bank of India Act, 1934, Banking Regulations Act, 1949 and Companion Act, 1956 subsequent to merger. 4. Whether the business of bank subsequent to merger implied establishment of a place of business within the meaning of Section 592 of the Companies Act or merely an alteration in the name of petitioner as per Section 593 of the Companies Act? 5. Are the proceedings filed by the petitioner barred under Section 599 of the Companies Act? 27. Before proceeding further, it is necessary at this stage to clear the decks on the law of merger or amalgamation applicable in the instant case. 28. Learned Counsel for the petitioner has contended that since the merger of the two companies took place is Japan the Japanese Law of Merger would be applicable. Per contra, it is contended on behalf of the respondents that it is the Indian Law of Merger which is applicable in the instant case in order to find out as to whether the establishment of a place of business as per Section 592 of the Companies Act has occurred by virtue of the merger of The Bank of Tokyo Ltd., with The Mitsubishi flank Ltd., and that the Japanese law of merger is not applicable to the facts and circumstances of the instant case and has also relied upon certain decisions on the effect of merger. 29. Learned senior Counsel for the respondent has relied upon decisions under Section 391 and Section 394 of the Companies Act, one such of the Hon'ble Supreme Court in the case of Singer India Ltd. Vs. Chander Mohan Chadha and Others, AIR 2004 SC 4368 wherein the question involved was whether an American Company amalgamated with an Indian Company under the scheme of amalgamation sanctioned by High Court under Sections 391 and 394 of the Companies Act, 1956 resulted in the creation of a new entity so as to attract the provisions of Section 14(1)(b) of the Delhi Rent Control Act, 1958 which deals with eviction on the ground of sub-letting. The Hon'ble Supreme Court, after referring to several precedents, opined that even if there is tax order of a Court sanctioning the scheme of amalgamation under Sections 391 and 394 of the Companies Act whereunder the leases, rights of tenancy or occupancy of the Transferor Company get vested in and become the property of the Transferee company, it would make no difference insofar as the applicability of Section 14(1)(b) is concerned, as the Act does not make any exception in favour of a lessee who may hare adopted each a course of action in order to secure compliance of law. Accordingly, the eviction was upheld on the ground that the American Company (lessee) though had merged with the Indian Company without obtaining any written consent from the landlord has parted with the possession of the premises in dispute in favour of the Indian company and it was the said company which was in exclusive possession of the premises and thereby it was liable for eviction in view of Section 14(1)(b) of the said Act. 30. In the aforesaid decision, reference was made to another decision of the Apex Court rendered in the case of Saraswati Industrial Syndicate Ltd. Vs. Commissioner of Income Tax, AIR 1991 SC 70 on which decision the learned senior Counsel for the respondent has placed reliance, wherein it is held that when two companies amalgamate and merge into one, the Transferor Company loses its entity as it ceases to have its business. However, their respective rights or liabilities are determined under the scheme of amalgamation but the corporate entity of the Transferor Company ceases to exist with effect from the date the amalgamation is made effective. In this case, Hon'ble Supreme Court has observed as follows: 5. Generally, where only one company is involved in change and the rights of the shareholders and creditors are varied, it amounts to reconstruction or reorganization or scheme of arrangement. In amalgamation, two or more companies are fused into one by merger or by taking over by another. Reconstruction or amalgamation has no precise legal meaning. The amalgamation is a blending of two or more existing undertakings into one undertaking, the shareholders of each blending company become substantially the shareholders in the company which is to carry on the blended undertakings. Reconstruction or amalgamation has no precise legal meaning. The amalgamation is a blending of two or more existing undertakings into one undertaking, the shareholders of each blending company become substantially the shareholders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company. 31. Reliance has also been placed on another decision in General Radio and Appliances Co. Ltd. and Others Vs. M.A. Khader (Dead) by Lrs., AIR 1986 SC 1218 wherein on account of a scheme of amalgamation sanctioned by the High Court under Sections 391 and 394 of the Companies Act, all properties, rights and powers of every description including tenancy rights held by M/s. General Radio and Appliances Co. Ltd., had bean merged with M/s. National Ekco Radio and Engineering Company, wherein it was held that the transferor company was no longer in existence in the eye of law and it had effaced itself for all practical purposes and the transferee company was not a tenant in respect of the suit premises and that it was the transferor company which had transferred possession of the suit premises in favour of the transferee company and therefore, under Section 10(ii)(a) of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, eviction was ordered on the ground of unauthorized subletting. 32. The other decision relied upon by the learned senior Counsel for the respondent is in the cane of Ratnabali Capitals Markets Ltd. Vs. Securities and Exchange Board of India and Another, AIR 2008 SC 290 . In the said case, Ratnabali Securities Ltd., merged with Ratnabali Capital Markets Ltd., and on the facts and circumstances of the said the Apex Court held that on merger of the above two companies, a new entity stood emerged/constituted which was given a right to operate in the derivative segment of the stock exchange and therefore, fresh registration fees on the turnover basis had to be made and that new entity Ratnabali Capital Markets Ltd., was not entitled to the benefit of continuity of fees deposited earlier by Ratnabali Securities Ltd. which got merged into Ratnabali Capital Markets Ltd., 33. Though the learned senior Counsel for the respondent has cited the above decisions, the same cannot be made applicable to the facts and circumstances of the case at hand as they axe the decisions rendered under Sections 391 and 394 of the Companies Act which deal with merger/amalgamation under the Indian Law whereas, in the instant case, what has to be considered is the off act of merger under the Japanese Law in the context of the terms and conditions of the merger agreement. 34. It is a settled position that all matters covering the status of foreign corporations should be determined by reference to domestic law of that corporation. The law in India with regard to statue of foreign companies is based on English Law and English decisions are generally followed. In the case of Technip S.A. Vs. SMS Holding (Pvt.) Ltd. and Others, JT (2005) 5 SC 506 the Hon'ble Supreme court has also opined that "Questions as to the status of a corporation are to be decided according to the laws of its domicile or incorporation subject to curtain exceptions including the exception of domestic public policy. This is because "a corporation is a purely artificial body created by law, it can act only in accordance with law of its creation". Therefore, if it is a corporation, it can be so only by virtue of the law toy which it was Incorporated and it is to this law alone that all questions concerning the creation and dissolution of the corporate status are referred unless it is contrary to the public policy." The Hon'ble Supreme Court has referred to various decisions of the House of Lords in this regard and also to Cheshire and North's Private International Law (12th edition, pg. 174), the relevant portion of which is extracted as follows: Questions concerning the status of a body of persons associated together for some enterprise, including the fundamental question whether it possesses the attribute of legal personality, must on principle be governed by the same law that governs the status of the individual, i.e. by the law of the domicil. What this law is admits of no doubt if we reason on the analogy of the individual. Every person, natural and artificial, acquires at birth domicile of origin by operation of law. What this law is admits of no doubt if we reason on the analogy of the individual. Every person, natural and artificial, acquires at birth domicile of origin by operation of law. In the case of the legitimate natural person it is the domicil domicile of his father, in the case of the juristic person it is the country in which it is horn, i.e., in which it is incorporated. If it is a corporation, it can be so only by virtue of the law by which it was incorporated. Sit is to this law alone that all quest ions concerning the creation and dissolution of the corporate status are referred. 35. In the aforesaid case, the Hon'ble Supreme Court was considering as to whether a company by name Technip had acquired control of SEAMAC through Coflexip in April, 2000 or in July, 2001. In the said case both Technip and Coflexip were incorporated in France whereas SEAMAC was the firm registered and incorporated in India. In the said case, certain public offers made by Technip were challenged and the question arose as to whether the impugned transaction had to be Judged according to French Law or Indian Law which is a question of law. Further, the determination as to French Law applicable was held to be "a question of fact but it is a question of fact of a peculiar kind" as has been stated in Cheshire and North's Private International Law (12th edition). To describe it (foreign law) as one of fact is no doubt apposite in the sense that the applicable law must foe ascertained according to the evidence of witnesses, yet there can be no doubt that what is involved is at bottom a question of law. This has been recognised by the Courts. 36. the Hon'ble Supreme Court has, however, made a distinction by stating that this general rule regarding determination of status by the Lax Incorporation will not apply when the issue relates to the discharge of obligation or rights by a corporation in an other country where such application is raised under the statute or contract, which is governed by law of such other country. In this context, reference has been made to the case of National Bank of Greece and Athens, S.A. v. Metliss (1957) 3 All ER 608, House of Lords. In this context, reference has been made to the case of National Bank of Greece and Athens, S.A. v. Metliss (1957) 3 All ER 608, House of Lords. In the said case a, Greek bank had issued mortgage bonds to persons in U.K. The bonds were guaranteed by the other bank, but both the issuing bank and guaranteed bank were incorporated under the Greek Law. The Greek Bank was subsequently abandoned and a new company was born. The bondholder sued the new company seeking guarantee. It was held by the House of Lords that the status of the new bank would be decided according to the law of the domicile of the original guarantor company and according to Greek Law, the new company had succeeded to the assets and liabilities of the guarantor company. However the House of Lords held that the claim of the bond holder wan to be considered and must ha covered by the English Law and it was held that the evidence of the fact of the Greek Moratorium in Greece was therefore irrelevant as the debt in question was an English dept and the obligation to pay it, its quantum and the dept of payment were all covered by English Law which will not give effect to the Greek Moratorium. Applying to above principle in the said judgment, the Hon'ble Supreme Court held that the relationship of Technip to Coflexip whether one of control or not, was really a question of their status and the law applicable was therefore the law of the domicile, namely, French law. 37. The Apex Court has further cautioned with the power to disregard a provision in the foreign law which must be exercised a with great circumspection and to discard a foreign law only because it is contrary to the Indian statue would defeat the basis of private international law to which India undisputedly subscribes Surinder Kaur Sandur v. Harbax Singh Sandu AIR 1984 SC 12544. In this context it is relevant to quote from Kuwait Airways Corporation v. Iraqi Airways Co. (3) : (2002) 3 AUER 2009 (HC) as follows: "The laws of the other country may hair a adopted solutions, or even basic principles, rejected by the law of forum country. These differences do not in themselves furnish reason why the forum country should decline to apply the foreign law". (3) : (2002) 3 AUER 2009 (HC) as follows: "The laws of the other country may hair a adopted solutions, or even basic principles, rejected by the law of forum country. These differences do not in themselves furnish reason why the forum country should decline to apply the foreign law". On the contrary the existence of difference is the very reason why it may be appropriate for the forum court to have recourse to the foreign law. If the laws of all countries were uniform there will be no "conflict of laws". (emphasis supplied). Further, under Section 43 of the Evidence Act, 1872, Courts should take admitted position into consideration, in order to form an opinion as to the tent of the relevant foreign law i.e., Japanese Law In the instant case. 38. In the above premise, it is pertinent to refer to an application accompanied by an affidavit filed on behalf of the petitioner pursuant to out order dated 11.3.2008 by which we had directed the petitioner to produce the agreement of merger between The Bank of Tokyo Ltd., and Mitsubishi Bank Ltd. in order to find out the nature and affect of merger in the instant case in the context of Japanese law of merger. The petitioner has placed on record the merger agreement which is In Japanese and also an English translation of the same alongwith an opinion of the Japanese attorney in relation to the effect of merger under Japanese Law as also certain statutory provisions of Japanese law in the context of merger and the legal effect of the same. There is also a certificate issued by an Advocate that the English translation of the merger agreement made by him is to the best of his knowledge and as the correct translation of the merger agreement which is in Japanese language. A perusal of the English translation of the merger agreement indicates that The Bank of Tokyo Ltd., (referred to as 'A' in the agreement) and The Mitsubishi Bank Ltd., (referred to an 'B' in the agreement) had entered into a merger agreement on 19.3.1993 and as per Article I of the said agreement the merger was on an equal basis, provided further threat as a matter of procedure 'A' was merged with 'B'. The other relevant articles of the merger agreement are extracted as follows: Article 2 B as a merging party shall change its trade name as of the date of merger (the "Merger Date") to Kabushiki Kaisha Tokyo Mitsubishi Ginko. The corporate name in English shall be The Bank of Tokyo-Mitsubishi, Ltd. Hereinafter B shall include such merging party with such changed trade name after merger with A. Article 9 The Merger Date shall be 1st April, 1996; provided, however, that such date may be changed upon consultation between A and B as necessity arises in connection with the procedures for the merger. Article 10 1. B shall succeed to all of A's assets, liabilities, eights and obligations (including but not limited to the rights and obligations under the convertible bond issued by A) existing on the Merger Date baaed on A's balance sheet and other accounting as of 31st March, 1995 and after making appropriate additions to and reductions from the same arising between that date and the Merger Date. 2. The conversion price(s) of the convertible bonds issued by A shall be adjusted in proportion to the ratio of the merger consideration. 3. A shall provide B with separate statements which shall indicate any and all changes in its assets and liabilities occurring during the period commencing on. 1st April, 1995 and ending on the date immediately preceding the Merger Date. Article 14 B shall assume all of A's employees as of the Merger Date as B's employees with their period of employment by A being added to the period of employment by B. All other matters in respect of treatment of A's employees shall be determined upon consultation between A and B. Article 16 On and after the Merger Date, B shall assume him head office and branch offices as B's offices. Article 20 This Agreement shall cease to have effect if the approvals of the respective shareholders of A and B at the general meetings of shareholders as provided for in Article 8 are not obtained or if the approvals of governmental authorities required by laws or ordinances are not obtained. 39. Article 20 This Agreement shall cease to have effect if the approvals of the respective shareholders of A and B at the general meetings of shareholders as provided for in Article 8 are not obtained or if the approvals of governmental authorities required by laws or ordinances are not obtained. 39. the petitioner has also produced an opinion From M/s Hadano & Partners, a law firm at Tokyo, on the effect of meager under Japanese laws and the legal opinion is accompanied by relevant extracts of the company law of Japan as it existed in the year 2007 when it was amended, but it was pointed out at the Bar that the law relating to merger was the same even in the year 1995 when the merger of the two banking companies in the instant case took effect. It would be useful to extract the English translation of relevant articles pertaining to merger, consolidation and reorganization of financial institutions under the Japanese Law. Article 6 Paragraph 1. Any merger, consolidation or reorganization under this Law shall not become effective without obtaining an approval of the Minister of Finance. Paragraph 5, The financial institution obtained the approval for the merger, consolidation or reorganization pursuant to the Paragraph 1 of this Article shall be deemed to have obtained approval and license of, among others, for the banking business under Article 4, Paragraph 1 of the Banking Law, Article 4, Paragraph 1 of the Long-Term Credit Bank Law, Article 4, Paragraph 1 of the Foreign Exchange Bank Law. Article 16 Paragraph 1. The merger or consolidation among the financial institutions shall become in effect upon the registration of change resulting from merger in the commercial register of the surviving financial institution or the registration of incorporation of the new financial institution resulting from the consolidation in the commercial registrar at the seat of the principal office registered or otherwise the principal place of business of the financial institution. Paragraph 2. The financial institution survived through the merger or the newly-incorporated financial institution through the consolidation shall take over any and all the eights and obligations and liabilities of the financial institution absorbed through the merger. 40. Paragraph 2. The financial institution survived through the merger or the newly-incorporated financial institution through the consolidation shall take over any and all the eights and obligations and liabilities of the financial institution absorbed through the merger. 40. From the above terms of the merger agreement, it becomes clear that the merger of the Bank of Tokyo Ltd., with the Mitsubishi Bank Ltd., has taken place under the provisions of the Japanese Law and that the entire procedure of merger occurred in Japan. It is also relevant to note that though The Bank of Tokyo Ltd., had established business in India since the year 1952, and the Mitsubishi Bank Ltd., had no place of business in India nevertheless, after the merger came into offset in Japan, the merged entity continued its business in India particularly in the context of Article 16 of merger agreement attracted above and it is not a case of establishment of a place of business for the first time in India but a continuation of the business already established in the year 1952. 41. After referring to the various provisions of the merger agreement as also the relevant law regarding merger, consolidation and reorganization of financial institutions under the provisions of the Japanese Law the Attorney in his opinion has opined that, A merger under the Japanese Law is defined as the legal transaction based upon the merger contract by and among two or more companies whereby all the eights and obligations of a party or parties not surviving shall be comprehensively succeeded to by operation of law (Article 2, subparagraph 27, Article 748 of currant Company Law in 2007 ("2007 Company Law))" Strictly speaking there are two types of mergers; (1) typical merger whereby a single existing company survives through the merger after transfer and assignment of all the rights and obligations enbloc by operation of law; and (2) less typical transaction which may be categorized as a consolidation whereby a new company is to be incorporated to take over all the rights and obligations of the panties to the consolidation. In each case, the legal status of the parties is all assumed by a transferee company by operation of law. In each case, the legal status of the parties is all assumed by a transferee company by operation of law. The legal transaction between The Bank of Tokyo Ltd. and the Mitsubishi Sank Limited is categorized as the merger with The Mitsubishi as a transferee company taking over the legal status of The Bank of Tokyo as the Transferor Company. Upon the merger, the surviving bank changed it a corporate name as "The Bank of Tokyo - Mitsubishi Ltd.," to reflect the merger and the continuity of a corporate existence of The Bank of Tokyo. Such change in the corporate name however, is not a legal requirement, but baaed upon the business judgment. (underlining by us) The provisions of the 2007 Company Law referred to above have not changed the legal nature of the merger before such statute. The idea herein is applicable to the merger between The Mitsubishi Bank and the Bank of Tokyo in 1993. After the merger and the taking-over of all the right a and obligations of the transferor merged company by the transferee company, the application for the change with the commercial register of the transferee company is to be filed simultaneously to publicize the merger. the legal reality is that a legal status as a plaintiff in other operations of the Bank of Tokyo had been all taken over by The Bank of Tokyo - Mitsubishi (currently, the Bank of Tokyo -Mitsubishi UFJ Ltd.,). The merged entity is legally the continuing entity equally of the previous transferee company and the reference to dissolution of the Bank of Tokyo is in relation to the fact that an all assets, rights and obligations, etc., having been transferred, there remains no assets in the transferor company. The term 'dissolution' used in this connection does not involve any liquidation of the assets of The Bank of Tokyo, because any and all the rights and obligations were automatically taken over by the Bank of Tokyo-Mitsubishi Ltd., (underlining by us) 42. The term 'dissolution' used in this connection does not involve any liquidation of the assets of The Bank of Tokyo, because any and all the rights and obligations were automatically taken over by the Bank of Tokyo-Mitsubishi Ltd., (underlining by us) 42. While discussing on the administrative control upon Banks the attorney's opinion elucidates that the law regarding the merger, consolidation and reorganization of financial institutions (Bank merger law) was applicable to the merger between The Bank of Tokyo and The Mitsubishi Bank in 1995 and at that time such law required the parties to the merger to obtain approval of the Minister of Finance (Article 6, paragraph 1) and that in the instant case such an approval for the merger had been taken. The opinion further states that as a result of the merger with the Mitsubishi Bank the business and operations of the Bank of Tokyo including such offices and licenses were all succeeded to by the Bank of Tokyo-Mitsubishi Ltd., and the licenses obtained by the Bank of Tokyo were all succeeded to by the Bank of Tokyo - Mitsubishi as the transfers party. The opinion has further referred to the comment published by the Ministry of Finance which states that on the approval of the merger granted by the Minis tar of Finance, "The transferee Bank through the consolidation or the merger need not apply for the new Banking business as the old businesses continue". The legal opinion concludes as follows: Conclusion: Under Japanese law read with Article 16 of the Merger Agreement, the business carried on by the Bank of Tokyo in India mad other jurisdictions continued in the form of the merged entity and no new place of business would be said to have been established as the offices of the Bank of Tokyo worldwide continued to be the office of the Bank of Tokyo and the Mitsubishi Bank Ltd., as the continuing transferee entity worldwide. The place of business established in foreign jurisdictions by the Bank of Tokyo as in Japan would be treated as the continuing place of business of the Bank of Tokyo in the merged entity of the Bank of Tokyo and the Mitsubishi Bank Ltd. In other words, as a result of the merger between The Bank of Tokyo and The Mitsubishi Bank Ltd., all assets (including offices, licenses, rights and obligations) and liabilities of The Bank of Tokyo became that of the merged entity i.e. the Bank of Tokyo Mitsubishi Ltd. and the business and offices of The Bank of Tokyo continued in the Bank of The Tokyo Mitsubishi Ltd. On a consideration of the relevant terms of the merger agreement and the relevant Japanese Law, in our view, no new entity came into existence by virtue of the merger of the two banks in the instant case. It is necessary to consider the abject and purpose as well as the effect of the approvals or sanctions granted to the petitioner by the RBI and ROC under the respective Acts. Reserve Bank of India Act, 1934 43. The Reserve Bank of India Act, 1934 (RBI Act, 1934) is an Act constituting the Reserve Bank of India with a view to secure monetary stability in India and generally to operate the currency and credit system of the country. The RBI is thus the prima banking institution of the country, the bankers bank, entrusted with the supervisory role over the banking, conferred with the authority of binding direction having statutory affaire in the interest of public in general and so as to prevent deterioration in banking affairs and secure proper management of banking companies generally. It is also been held that the RBI is a monetary regulator and enunciates the banking policy of the country and acts, inter alia, under the provisions of the RBI Act and Banking Regulation Act which are comprehensive provisions to control and regulate banking business in India including foreign policies. Therefore, these provisions override the provisions of the Companies Act in so far as they relate to the banking companies. Sub-section (a) of Section 2 of the Act defines "scheduled bank" to mean a bank included in the Second Schedule of the said Act. Therefore, these provisions override the provisions of the Companies Act in so far as they relate to the banking companies. Sub-section (a) of Section 2 of the Act defines "scheduled bank" to mean a bank included in the Second Schedule of the said Act. Section 42 deals with cash reserves of scheduled banks to be kept with the Reserve Bank of India and Sub-clause (a) of Clause of (6) of Section 42 states that the bank shall, by notification in the Gazette of India, direct the inclusion in the Second Schedule of any bank not already so included which carries on the business of banking in India subject to certain terms and conditions and Sub-clause (c) of Clause 6 of Section 42 pertains to the issuance of a notification in the Gazette of India with regard to alteration in the description in the Schedule whenever any scheduled bank changes its name. The section it self makes a distinction between inclusion of a name for the first time as opposed to alteration in name. 44. A perusal of Second Schedule of the Reserve Bank of India Act, 1934 indicates that the name of The Bank of Tokyo was changed as The Bank of Tokyo-Mitsubishi Limited as per the procedure required under Section 42(6)(c). Banking Regulation Act, 1949 43. The Banking Regulation Act, 1949 (B.R. Act, 1949) originally called The Banking Companies Act, 1949 is an Act to consolidate and amend the law relating to banking. The main features of the Banking Regulation Act as stated in the objects and reasons are as follows: -A comprehensive definition of "banking" so as to bring within the scope of the legislation all institutions which receive deposits repayable on demand or otherwise, for landing or investment. -Inclusion in the scope of legislation of Banks incorporated or registered outside the provinces of India. -Introduction of a comprehensive system of licensing of Banks and their branches. -Prescription of a special form of balance-sheet and conferring of powers on the Reserve Bank to call for periodical returns. -Inspection of the books and accounts of a bank by the Reserve Bank. -Empowering the Central Government to take action against Banks conducting their affairs in a manner detrimental to the interest of the depositors. 46. -Prescription of a special form of balance-sheet and conferring of powers on the Reserve Bank to call for periodical returns. -Inspection of the books and accounts of a bank by the Reserve Bank. -Empowering the Central Government to take action against Banks conducting their affairs in a manner detrimental to the interest of the depositors. 46. Clause (c) of Section 3 of the Act defines 'banking company' to be any company which transacts the business of banking in India and under Clause (o) of Section 5, words and expressions used in the said Act but not defined and defined in the Companies Act, 1956 shall have the meanings respectively assigned to them in the Companies Act. Section 11 & 12 of the said Act provide for minimum paid up capital and reserves and also compliance with paid up capital vis-a-vis subscribed and authorised capital requirements. Section 22 of the said Act pertains to licensing of banking companies and Section 23 pertains to restrictions on opening of new and transfer of existing places of business. Further Section 11(2) of the Banking Regulation Act 1949 provides that no banking category incorporated outside India shall commence or carryon business in India unless it complies with the requirement of minimum paid up capital and reserves specified in that section and also keeps deposit with the RBI either in cash or in the form of unencumbered approved securities or partly in cash and partly in the form of such securities the aggregate value of its paid up capital and reserves which shall not be less than Rs. 20,00,000/-. If the place of business in Bombay, it shall also deposit with the RBI an amount calculated at 20% at its profits in accordance with profit and Loss of Account of each year. 47. Under Section 22 of the Banking Regulations Act, 1949 before granting any license in respect of Banking Company incorporated outside India the RBI has to be satisfied by the inspection of books of the company that; -The banking company is or will be in a position to pay its present or future depositors in full as per their claims as their claims accrued. -The affaire of the company are not being or are not likely to be, conduct ad In a manner detrimental to the interest of its present or future depositors. -The affaire of the company are not being or are not likely to be, conduct ad In a manner detrimental to the interest of its present or future depositors. -The general character of the proposed management of the company will not be prejudicial to the public interest or the interest of its depositors. -The company has adequate capital structure and earning prospects. -The public interest will be served by the grant of a license to the company to carry on banking business in India. -The banking facilities available in the proposed of the company, the potential scope for expansion of branch already in existence in the area and other relevant factors the grant of license would not be prejudicial to the operation and consolidation of the banking system consistent with monetary stability and economic growth. -The Government or law of the country in which it is incorporated does not discriminate in any way against the banking companies registered in India. -The company complies with all the provisions of the Banking Regulation Act applicable to banking companies incorporated outside India, viz., Sections 11, 12, 22, 23 and 33. 48. Under Section 22 of the Banking Regulation Act, the procedure for obtaining license by banking companies is more rigorous and comprehensive as compared to the procedure prescribed under Section 592 of the Companies Act. 49. Further under Section 23 of the Banking Regulation Act no new place of business can be commenced without prior permission of the RBI and before granting such permission the RBI has to be satisfied by an inspection Under Section 35 of the Banking Regulation Act or otherwise as to the financial condition And history of the banking company, the general character of its management, the adequacy of its capital structure and earning prospects and that public interest would be served by opening of a new place of business. Any failure with any of the conditions imposed while granting permission would result in revocation of the permission. Thus it is evident that the Banking Regulation Act is a (sic) comprehensive legislation in relation to banking business in India which involves public interest, interest of depositors, banking policy and the general fiscal health of the country. The banking system in the-country is controlled by the RBI. 50. Thus it is evident that the Banking Regulation Act is a (sic) comprehensive legislation in relation to banking business in India which involves public interest, interest of depositors, banking policy and the general fiscal health of the country. The banking system in the-country is controlled by the RBI. 50. Section 49B of the said Act states that notwithstanding anything contained in Section 21 of the Companies Act, 1956, the Central Government shall not signify its approval to the change of name of any banking company unless the Reserve Bank certifies in writing that it has no objection to such change. Section 49C states that notwithstanding anything contained in the Companies Act, 1956, no application for the confirmation of the alteration of the memorandum of a banking company shall be maintainable unless the Reserve Bank certifies that there is no objection to such alteration. Therefore, it is apparent that the provisions of the Banking Regulation Act, 1949 override the provisions of the Companies Act, 1956 in the matter of change of name of a banking company a alteration of memorandum of a banking company. Companies Act, 1956 51. Companies Act, 1956 is an Act to consolidate and amend the law related to companies on certain other associations. Clause (5) of Section 2 defines "banking company" to have the same meaning as in the Banking Companies Act, 1949 (The Banking Regulation Act, 1949). Clause (8) of Section 234 of the Companies Act states that the provisions of the section shall apply mutatis mutandis to documents which a liquidator, or a foreign company within the meaning of Section 591, is required to file under this Act. It is useful to extract Section 234 which deals with power of Registrar to call for information or explanation. Power of Registrar to call for information or explanation. 234(1) Where, on perusing any document which a coop any is required to submit to him under this Act, the Registrar of opinion that any information or explanation is necessary [with respect to any matter to which such document] purports to relate, he may, by a written order, call on the con|3any submitting the document to furnish in writing such information or explanation, within such time as he may specify in the order. (2) On receipt by the company of an order under Sub-section (1), it shall be the duty of the company, and of all persona who axe officers of the company, to furnish such information or explanation to the beat of their power. (3) On receipt of a copy of an order under Sub-section (1), it shall also be the duty of every person who baa been an officer of the company to furnish such information or explanation to the beat of his power. [(3A) If no information or explanation is furnished within the time specified or if the information or explanation furnished is, in the opinion of the Registrar, inadequate, the Registrar may by another written order call on the company to produce before him for his inspection such books and papers as he considers necessary within such time as he may specify in the order; and it shall be the duty of the company, and of all persons who are officers of the company, to produce such books and papers] (4) If the company, or any ouch person as is referred to in Sub-section (2) or (3), refuses or neglects to furnish any such information or explanation for if the company or any such parson as is referred to in Sub-Section (3A) refuses or neglects to produce any such books and papers]- [(a) the company and each such parson shall be punishable with fine which may extend to [five thousand] rupees and in the case of a continuing offence, with mi additional fine which may extend to [five hundred] rupees for every day after the first during which the offence continues; and (b) the Court trying the offence may, on the application of the Registrar and after notice to the company, make an order on the company for production before the Registrar of such books and papers as in the opinion of the Court, may reasonably be required by the Registrar for the purpose referred to in Sub-section (1)]. (5) On receipt of any writing containing the information or explanation referred to in Sub-section (1), or of any book or paper produced whether in pursuance of an order of the Registrar under Sub-section (3A) or of an order of the Court under Sub-section (4), the Registrar may annex that writing book or paper, or where that book or paper is required by the company, any copy or extract thereof, to the document referred to in Sub-section (1), and any wetting or any book or paper or extract thereof so annexed shall be subject to the like provisions as to inspection, the taking of extracts and the furnishing of copies, as that document is subject. (6) If such information or explanation is not furnished within the specified time or if after perusal of such information or explanation or of the books and papers produced whether in pursuance of an order of the Registrar under Sub-section (3A) or of an order of the Court under Sub-section (4), the Registrar is of opinion that the document referred to in Sub-section (1), together with such information or explanation or such books and papers discloses as unsatisfactory state of affairs or does not disclose a full and fair statement of any matter to which the document purports to relate, the Registrar shall report in wilting the circumstances of the case to the Central-Government.] (7) If it is represented to the Registrar on materials placed before him by any contributory or creditor or any other person interested that the business of a company is being carried on in fraud 10:57 AM 9/2/2008of its creditors or of persons dealing with the company or otherwise for a fraudulent or unlawful purpose, he may after giving the company an opportunity of being heard, by a written order, call on the company to furnish in writing any information or explanation on matters specified in the order, within such time as he may specify therein; and the provisions of Sub-sections (2), (3), (3A), (4) and (6) of this section shall apply to such order. If upon inquiry, the Registrar is satisfied that any representation on which he took, action under this subsection was frivolous or vexatious, he shall disclose the identity of his Informant to the company. If upon inquiry, the Registrar is satisfied that any representation on which he took, action under this subsection was frivolous or vexatious, he shall disclose the identity of his Informant to the company. (8) The provisions of the section shall apply Mutatis mutandis to documents which a liquidator, or a foreign company within the meaning of section 591, is required to file under this Act. 52. At this stage, it is relevant to refer to part XI of the Companies Act, 1956, which pertains to companies incorporated outside India - provisions as to establishment of places of business in India. Section 591 dealing with the applicability of Section 592 to 602 to foreign companies reads as follows: 591. Application of Sections 592 to 602 to foreign companies: (1) Section 592 to 602, both inclusive, shall apply to all foreign companies, that is to say, companies falling under the following two classes, namely: (a) companies incorporated outside India which, after the commencement of this Act, establish a place of business within India; and (b) companies incorporated outside India which have, before the commencement of this Act, established a place of business within India and continue to have an established place of business within India at the commencement of this Act. (2) Notwithstanding anything contained in Sub-section (1), where not less than fifty percent, of the paid-up share capital (whether equity or preference or partly equity and partly preference) of a company incorporated outside India and having an established place of business in India, is held by one or more citizens of India or by one or more bodies corporate incorporated in India, or by one or more bodies of India and one or more citizens of India and one or more bodies corporate incorporated in India, whether singly or in the aggregate, such company shall comply with such of the provisions of this Act as may be prescribed with regard to the business carried on by it in India, as if it were a company incorporated in India. 53. Section 592 which deals with documents etc., to be delivered to Registrar by foreign companies carrying on business in India reads as follows: 592. Documents, etc., to be delivered to Registrar by foreign companies carrying on business in India. 53. Section 592 which deals with documents etc., to be delivered to Registrar by foreign companies carrying on business in India reads as follows: 592. Documents, etc., to be delivered to Registrar by foreign companies carrying on business in India. (1) Foreign companies which, after the commencement of this Act, established a place of business within India shall, within (thirty days) of the establishment of the place of business, deliver to the Registrar for registration- (a) a certified copy of the charter, statutes, or memorandum and articles, of the company or other instrument constituting or defining the constitution of the company; and, if the instrument is not in the English language, a certified translation thereof; (b) the full address of the registered or principal office of the company; (c) a list of the directors and secretary of the company, containing the particulars mentioned in Sub-section (2); (d) the name and address or the names and addresses of some one or more persons resident in India, authorised to accept on behalf of the company service of process and any notices or other documents required to be served on the company; and (e) the full address of the office of the company in India which is to be deemed its principal place of business in India. (2) The list referred to in Clause (sic) of Sub-section (1) shall contain the following particulars, that is to say: (a) with respect to each director- (i) in the case of an individual, his present name and surname in full, any former name of names and surname or surnames in full, hi usual residential address, his nationality, and if that nationality is not the nationality of origin, his business occupation, if any or if he has no business occupation but holds any other directorship or directorship; and (ii) in the case of a body corporate, its corporate name and registered or principal office; and the full name, address, nationality, and nationality of origin, if different from that nationality of each of its directors; (b) with respect to the secretary, or where there are joint secretaries, with respect to each of them (i) in the case of an individual, his present name and surname, any former nana or names and surname or surnames, and his usual residential address; and (ii) in the case of a body corporate, its corporate name and registered or principal office: Provided that, where all the partners in a firm are joint secretaries of the company, the name and principal office of the firm may be stated instead of the particulars mentioned in Clause (b) of this sub-section. (3) Clauses (2) and (3) of the Explanation to Sub-section (1) of Section 303 shall apply for the purpose of the construction of references in Sub-section (2) to present and former names and surnames as they apply for the purposes of the construction of such references in Sub-section (1F) of section 303. (4) Foreign companies, other than those mentioned in Sub-section (1), shall, if they have not delivered to the Registrar before the commencement of this Act the documents and particulars specified in Sub-section (1) of Section 277 of the Indian Companies Act, 1913 (7 of 1913), continue to be subject to the obligation to deliver those documents and particulars in accordance with that Act. 54. Section 593 dealing with returns to be delivered to Registrar by foreign companies where documents ate, altered reads as follows: 593. Return to be delivered to Registrar by foreign company where documents, etc., altered. 54. Section 593 dealing with returns to be delivered to Registrar by foreign companies where documents ate, altered reads as follows: 593. Return to be delivered to Registrar by foreign company where documents, etc., altered. If any alteration is made or occurs in- (a) the charter, statutes, or memorandum and articles of a foreign company or other instrument constituting or defining the constitution of a foreign company; or (b) the registered or principal office of a foreign company; or (c) the directors or secretary of a foreign company; or (d) the name or address of any of the persons authorised to accept service on behalf of a foreign company; or (e) the principal place of business of the company in India; the company shall, within the prescribed time, deliver to the Registrar for registration a return containing the prescribed particulars of the alteration. 55. Suction 598 pertains to penalties for non-compliance of any of the provisions of part XI reads as follows: 598. Penalties If any foreign company fails to comply with any of the foregoing provisions of this Part, the company, and every officer or agent of the company who is in default, shall be punishable with fins which may extend to ten thousand rupees, and in the case of a continuing offence, with an additional fins which may extend to one thousand rupees for every day during which the default continues. 56. Section 599 which is relied upon by the respondents in the instant case and on the basis of which IA No. 4/2002 for disposal of O.A. No. 327/2000 was filed before the DRT, is the effect of non-compliance of a foreign company with the provisions of part XI, its liability under contract, etc., and the said Section reads as follows: 599. Company's failure to comply with Part not to affect its liability under contracts, etc. Any failure by a foreign company to comply with any of the foregoing provisions of this Part shall not affect the validity of any contract, dealing or transaction entered into by the company or its liability to be sued in respect thereof; but the company shall not be entitled to bring any suit, claim any set off, make any counter-claim or institute any legal proceeding in respect of any such contract, dealing for transaction, until it has complied with the provisions of this Part. 57. 57. The object and purpose of part MI of the Companies Act is that a company incorporated outside India should in the matter of supplying information to the public about its constitution, etc., submission of accounts to the Registrar of Companies and the registrar ion and contents of prospectus be placed on the same footing as a company incorporated in India. Foreign companies are merely required within 30 days of establishment of plaice of business in India to file specified documents, e.g. documents relating to their incorporation in the country of origin etc., Section 592 of the Companies Act applies to foreign companies incorporated outside India after commencement of the companies Act and establishing a place of business in India. While Section 593 of the Act deals with alteration in the name of the banking company, its charter etc., the further necessity of Section 591 to Section 593 part XI of the said Act is to bring the foreign company within the jurisdiction of Indian Court it became necessary to define a foreign coop any and to provide for a person to accept the process on behalf of the foreign company in India. 58. Though under the Companies Act there is no formality required for a foreign company to establish a place of business in India except the filing of document a required by part XI, the permission of the Reserve Bank of India for a foreign bank for establishing any place of business for carrying on any activity of commercial nature is necessary. 59. The question that arises in the instant case is as to whether there has been compliance with the provisions of Section 592 and/or Section 593 of the Companies Act so that O.A. No. 327/2000 and O.A. No. 326/2000 filed by the petitioner before the DRT are not sealed by the provisions of Section 599 of the Companies Act and therefore are maintainable in law. 60. Section 592 of the Act deals with establishing a place of business while Section 593 of the Act pertains to an alteration in the particulars mentioned in Clause (a) to (e) of the said Section. Section 592 of the Companies Act applies to foreign companies incorporated outside India after commencement of the companies Act and establishing a place of business in India. Section 592 of the Companies Act applies to foreign companies incorporated outside India after commencement of the companies Act and establishing a place of business in India. the meaning of the expression "established place of business" is not defined under the Section but has to be understood in the context of the manner and mode by which a foreign company enters the country so as to attract the provisions of part XI of the Companies Act. 61. Section 592 of the Act applies to a case where for the first time, a place of business is established in India and is one covered under Section 591(1)(a) of the Act (i.e., after the commencement of the Companies Act, 1956), while Section 593 applies to a case which can be covered under Section 591(1)(b) i.e., company incorporated outside India before the commencement of the Act. Therefore, a company incorporated outside India which "after the commencement of the Act", "establishes a place of business within India" is covered under Section 592 r/w Section 591(1)(a) as the same phrases are found in both the provisions. On the other hand, a company which wma incorporated outside India which had "before the commencement Act, established a place of business within India and continue to have an established place of business within India at the commencement of this Act" is covered under Section 593 r/w Section 591(1)(b) of the Act. The two provisions are mutually exclusive and operate under different circumstances, as Section 591(1) (a) and (b) itself has differentiated the two situations under which the provisions of Part XI of the Act apply, namely, foreign company incorporated outside India (1) after the commencement of the Act, establishing a place of business within India, whereunder Section 592 applies and (2) before the commencement of the Act, established a place of business within India and continued to have an established place of business within India at the commencement of the Act, whereunder Section 593 applies. 62. 62. In the instant case, The Bank of Tokyo, having established its business in India prior to the enforcement of the Companies Act, 1956 i.e., in the year 1952, the case is covered under Section 591(1)(b) and falls squarely under Section 593 of the Act as we have already held that the merger/amalgamation of the two Banks did not amount to establishing; a place of business within India and therefore, does not fall under Section 591(1)(a) as well as Section 592 of the Act. Our view is also fortified by the approvals and sanctions granted by the RBI and ROC in the year 1996 and in the year 2004 under the Reserve Bank: of India Act, 1934, Banking Regulations Act, 1949 and Companies Act, 1956, The Approvals and sanctions were granted on the footing that the merger of the Bank of Tokyo with The Bank of Mitsubishi Ltd., and subsequently The Bank of Tokyo Mitsubishi Ltd., with UFJ Bank Ltd., did not result in the creation of a third new entity nor was it a case of establishment of a place of business within India, but a continuation of an established place of business and therefore, the application filed by the petitioner tinder Section 593 of the Companies Act was legal and proper and therefore, the objections raised by the respondent that the recovery proceedings were not maintainable in view of the bar under Section 599 of the Companies Act lo untenable and unjust. 63. the Banking Regulation Act is a special enactment and overrides the Companies Act, whereas Companies Act is a general Act and even though later in time it does not prevail over the Banking Regulation Act. Section 616(b) of the Companies Act is an express provision which states that Companies Act shall not apply where there is inconsistency with the provision of Banking Regulation Act, therefore, the Banking Regulation Act and the RBI Act 1934 override the Companies Act. Section 616(b) of the Companies Act is an express provision which states that Companies Act shall not apply where there is inconsistency with the provision of Banking Regulation Act, therefore, the Banking Regulation Act and the RBI Act 1934 override the Companies Act. Under the circumstance, the fact that the approval of the change in name was granted by the RBI, which in our opinion is in consonance with the change in name granted by the Registrar of Companies Under Section 593 of the Companies Act, have to be given due weightage and taken as a conclusive proof of the fact that both the authorities while acting In their respective jurisdictions under the respective enactments namely the Banking Regulation Act 1949 and the Companies Act 1956 have taken a view that it was a case of an alteration in the name of the banking company and not a case of establishment of a new place of business in India. Hence, in our view, the DRAT, Chennai ought to have taken into consideration the fact that notification dated 10.4.96 was published in the official gazette dated 27.4.96 approving the change of name in the second schedule under the RBI Act, 1934 as conclusive if the status of the petitioner as an existing bank. 64. The respondent has also produced Annexure R-8 a perusal of which makes It Apparent that on 14.8.1996, an amendment has been made to the name subject to the conditions mentioned in the RBI latter dated 8.5.1953. Therefore, in our view, by virtue of the said amendment, the licence granted to the erstwhile The Bank of Tokyo was continued In the name of the petitioner thereby implying that there has been no establishment of a banking business in India in the year 1996 pursuant to the merger within the scope of Section 592 of the Companies Act. the fact that the existing licence has been continued in the name of the petitioner company only makes it apparent that it is only a change in the nave and there is no issuance of a fresh licence to the petitioner by the RBI. 65. the fact that the existing licence has been continued in the name of the petitioner company only makes it apparent that it is only a change in the nave and there is no issuance of a fresh licence to the petitioner by the RBI. 65. The requisite documents in compliance with the provisions of part XI of the Companies Act 1956 by a foreign company were filed by the petitioner in the office of the Registrar of Companies in order to state that consequent upon the merger the business of Bank of Tokyo as it existed prior to 1.4.96 continued in existence by operation of law and no new place of business as such was established. But there was alteration and only change of name as The Bank of Tokyo - Mitsubishi Bank Ltd., and no new place of business came in to existence. Under the circumstances Section 592 of the companies Act 1956 was not attracted to the facts and circumstances of the case and it was Section 593 of the said Act which was applicable. 66. Exhibit G dated 1.9.1981 to Annexure-C and Exhibit I to Annexure-C which are documents under Sections 594(3) and 593 of the Companies Act and submitted to the ROC and issued by the ROC (wrongly typed as RBI) respectively also clearly establish that in the first instance, the business of The Bonk of Tokyo was established in India prior to the merger and that after merger, the name of the company was changed in compliance with Section 593 of the Act. 67. According to the respondent, Form 49 ways filed by the petitioner along with documents regarding alteration of name was filed on 24.5.2004 long after the amalgamation of the petitioner. That it is a matter of record that the filing of form 49 and of some Form and Documents on 24.5.2004 were under Section 593 of the Companies Act, 1956. Further more, it is also a matter of record that prior thereto the Petitioner had filed Forms and Documents on 5.8.1996 including Form No. 49 together with amended Articles of Incorporation and List of Directors which had been taken on record by the office of the ROC after due consideration and as per practice. Further more, it is also a matter of record that prior thereto the Petitioner had filed Forms and Documents on 5.8.1996 including Form No. 49 together with amended Articles of Incorporation and List of Directors which had been taken on record by the office of the ROC after due consideration and as per practice. On 3.4.2002, the Deputy Registrar of Companies, NCT of Delhi and Haryana has issued a letter to the petitioner Bank regarding Form 49 being ft lad on 3.8.1996 in compliance with Section 593 of the Companies Act, 1956 which was taken an record and with affect from 1.4.1996, the name of the petitioner was changed from The Bank of Tokyo Limited to the Bank of Tokyo-Mitsubishi Limited. 68. Further, the respondent itself by letter dated 23.4.2005 had made a complaint to the Registrar of Companies and the said complaint was also disposed of vide order dated 14.6.2006 closing the complaint of the respondent that the petitioner had not complied with Section 592(1) of the Companies Act, by directing that the reply of the petitioner has been received to the complaint and no further action is required in the matter which had become final and therefore, the DRAT, Chennai could not have gone into the question as the matter had been disposed of by the Registrar of Companies and in the review petition, the subsequent order of the Registrar of Companies to the complaint and the complaint made by the respondent were also placed on record and therefore, the DRAT, Chennai ought to have allowed the review petition. 69. That, further more, it has been recorded and certified in the letter of the office of the ROC dated 24.8.2004 that consequent upon the merger of The Bank of Tokyo, Ltd. to The Bank of Tokyo-Mitsubishi, Ltd. the name of the petitioner has bean recorded in its Office record and no fresh Certificate for establishment of place of Business is required to be issued and that the said Certificate is conclusive with regard to the compliance with the provisions at the Companies Act applicable to the petitioner. 70. The learned senior, Counsel for the respondent has relied upon a decision of the Delhi High Court in the cane of S.K. Bhattacharya and Anr. v. Union of India and Ors. 1998 Vol. 70. The learned senior, Counsel for the respondent has relied upon a decision of the Delhi High Court in the cane of S.K. Bhattacharya and Anr. v. Union of India and Ors. 1998 Vol. 91 Company Cases 37 wherein it has been held that the Registrar of camp an low is merely an administrative authority appointed under Section 609 of the Companies Act and the office of the Registrar of Companies is merely an office of record. The Registrar is neither a Court nor an adjudicating authority and therefore it is contended that the certificate issued by the Registrar of Companies in the instant case is justiciable and that it is not the final authority to decide as to whether compliance with Section 592 or Section 593 of the Companion Act is requisite in a given case. 71. Learned senior Counsel for the petitioner in reply has relied upon a decision of the Supreme Court in the case of United Bank of India Vs. Naresh Kumar and others, 1996 (6) SCALE 764 to contend that substantive rights should not he allowed to he defeated on technical grounds of procedural irregularity so as to ensure that no injustice is done to any party. 72. In our view, under Section 234 of the Companies Act, the Registrar of Companies is the sole and proper authority to decide upon the issue as to whether the documents filed are appropriate or not. 73. the reasoning of DRAT, Chennai that after merger, a new entity under a new name came into existence and if it wanted to carry on business in India, then it had to deliver the relevant documents as required under Section 592 of the Companies Act and that the petitioner was not covered under the purview of Section 593 of the said Act, in our view, is not correct. No doubt Section 592 of the Companies Act is a mandatory provision but the question that arises in this case is not as to whether there ban been a non-compliance of a mandatory provision but as to whether Section 592 applies at all to the facts and circumstances of the case. No doubt Section 592 of the Companies Act is a mandatory provision but the question that arises in this case is not as to whether there ban been a non-compliance of a mandatory provision but as to whether Section 592 applies at all to the facts and circumstances of the case. Since we have taken a view that it is Section 593 and not section 592 which applies in the instant case, the issue regarding a mandatory provision not being complied with as reasoned by the DRAT does not require to be gone into. The reliance placed on the two decisions viz. AIR 1991 SC 70 and AIR 2004 SC 4368 discussed above do not apply to the facts and circumstances of this case as reasoned above. The observation that any order/decision that is taken by the Registrar of Companies would be in the nature of administrative acts and does not have a binding force upon the Tribunal (appellate authority) which is entitled to adjudicate upon the issue, is not correct, as in our view, the Registrar of Companies, on an application of mind, has to determine whether the documents filed are in compliance with Section 592 or Section 593 and for which the object and purpose of the statute as well as the circumstances of each case have to be borne in mind. Once the order of the Registrar of Companies becomes final and is not challenged, the same has a binding effect on the Courts and Tribunals. In the instant case, the RBI or the ROC, on consideration of the documents produced by the petitioner before them had taken a view that the instant case was not one of establishment of a new place of business and therefore, the need for a fresh licence was absent and an application under Section 592(1) of the Companies Act also was not necessary which order has become final and binding. 74. In view of what is stated above, the order dated 1910.2005 in M.A. No. 82/2005 and M.A. No. 83/2005 passed by DRAT is set aside. Consequently, the order on the Review Petitions in R.P. No. 1/2006 and R.P. No. 2/2006 passed by DRAT is also set aside. The writ petitions are allowed but without any order as to costs. 75. In view of what is stated above, the order dated 1910.2005 in M.A. No. 82/2005 and M.A. No. 83/2005 passed by DRAT is set aside. Consequently, the order on the Review Petitions in R.P. No. 1/2006 and R.P. No. 2/2006 passed by DRAT is also set aside. The writ petitions are allowed but without any order as to costs. 75. Since the proceedings before the DRT ace pending since the year 2000, we direct that the same be concluded expeditiously and at any rate, within a period of six months from the date of receipt of this order.