Kerala High Court
Prof. V.P. Haridas vs State Of Kerala on 12 April, 2024
Author: Amit Rawal
Bench: Amit Rawal
WP(C) No.1717/2023 1 / 20
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
Friday, the 12th day of April 2024 / 23rd Chaithra, 1946
WP(C) NO. 1717 OF 2023 (L)
PETITIONERS:
1. PROF. V.P. HARIDAS, AGED 72 YEARS, 'BABY HOUSE', PODUVAL
JUNCTION, SHORNOOR, PIN - 679 121.
2. DR. VINOD KUMAR, AGED 66 YEARS, 'SOUPARNIKA', NORTH GATE, VAIKOM,
PIN. 686 141, KOTTAYAM DISTRICT, PIN - 686 141.
RESPONDENTS:
1. STATE OF KERALA, REPRESENTED BY CHIEF, SECRETARY GOVT. OF
KERALA, SECRETARIAT, THIRUVANATHAPURAM, PIN - 695 026.
2. I . G . OF REGISTRATION, REGISTRAR OF NON TRADING
COMPANIES, THIRUVANANTHAPURAM, KERALA, PIN - 695 026.
3. NAIR SERVICE SOCIETY (NSS), CHENGANASSERY, REPRESENTED BY
ITS GENERAL SECRETARY, NSS HEADQUARTERS , PERNUNNA,CHENGANASSERY
P.O, PIN - 686 102.
4. DR. M. SASIKUMAR, AGED 77 YEARS, S/O MADAVAN PILLAI, PRESIDENT,
NAIR SERVICE SOCIETY, KOTTINATTU BUNGLOW, KANNAMPALLI BHAGOM,
KAYAMKULAM, PIN - 690 502.
5. G. SUKUMARAN NAIR, AGED 83 YEARS, S/O GOPALAN NAIR, (GENERAL
SECRETARY, NAIR SERVICE SOCIETY), GOPURATHINGAL, RUBI NAGAR P.O.,
VAZHAPPALLI, CHANGANACHERRY, PIN - 686 103.
6. N.V. AYYAPPANPILLAI, AGED 72 YEARS, S/O VELU PILLAI, ADVOCATE,
TREASURER, NSS, TRASANTHI',PADANAYARKULANGARA NORTH, KARUNAGAPILLI,
PIN - 690 518.
7. M. SANGEETHKUMAR, AGED 66 YEARS, R. MOHAN NATHAN NAIR, SREE
GOVINDH', AMBALATHARA P.O.,THIRUVANANTHAPURAM, PIN - 695 026.
8. K A L A N J O O R M A D H U , A G E D 6 4 Y E A R S , N A R A Y A N A P A N I K E R , S R E E
NIKETHAN,KALANJOOR P.O., ADOOR, PIN - 689 694.
9. H A R I K U M A R , A G E D 6 7 Y E A R S , S / O G O V I N D A P I L L A , K O I K K A L ,
VLJAYABHAVANAM, PERUNNA WEST P.O,CHANGANASSERY, PIN - 686 102.
10. M.S. MOHAN, AGED 67 YEARS, S/O SIVARAMAN NAIR, ADVOCATE,
MULLASSERIL, PONKUNNAM P.O., KOTTAYAM DISTRICT, PIN - 686 506.
11. M.M. GOVINDHANKUTTY, AGED 77 YEARS, S/O MADHAVAN PILLAI,
`MANGATTU', KADAVANTHRA- KALOOR ROAD, KADAVANTHRA P.O., COCHIN, PIN
- 682 020.
12. CHITHARA S, AGED 68 YEARS, D/O SANKARAN PILLAI, RADHAKRISHNAN
NAIR, ADVOCATE, AANATH VIHAR, KADACKAL P.O. 691536, CHADAYAMANGALAM,
PIN - 691 536.
13. K . R . S I V A N K U T T Y , A G E D 6 6 Y E A R S , S / O R A G H A V N P I L L A I ,
WP(C) No.1717/2023 2 / 20
(PANTHALAM SIVANKUTTY) KUNNATH HOUSE,THONNALLOOR, PANDALAM P.O., PIN
- 689 501.
14. C.P. CHANDRAN NAIR, AGED 74 YEARS, S/O PARAMESWARAN NAIR,
CHOLLANICKAL,MURUKKUMPUZHA, PALA P. O., PIN - 689 302.
15. D R . G . G O P A K U M A R , AGED 62 YEARS, S/O GOPALA PILLAI,
DEEVIPRASADHAM', PERAYAM, MULAVANA P.O., KOLLAM., PIN - 689 504.
16. ADVOCATE G. MADHUSOODHANAN PILLAI, AGED 76 YEARS, S/O GOINDGA
PILLAI, 'VENUKA' NEAR KACHERI, ATTINGAL P.O, PIN - 689 549.
17. V.A. BABURAJ, AGED 61 YEARS, S/O APPUKUTTAN NAIR, ADVOCATE,
`SWATHI',PURAVOORKONAM, KARAKULAM P. O.,NEDUMANGADU, PIN - 689 567.
18. G . T H A N K A P P A N P I L L A A G E D 6 7 Y E A R S S / O G O P A L A P I L L A I ,
PARVATHIMANDIRAM,KARICKAKALN P.O., KOTTARAKKARA, PIN - 686 106.
19. PROF. K.P. NARAYANA PILLAI, AGED 63 YEARS, S/O PADMANABHA
PANIKER, KUMARACHADATHU HOUSE, KIDANGARA P.O. , CHANGANASSERRY, PIN
- 686 103.
20. M . P . UDAYABHANU, AGED 54 YEARS,
S/O UNNIKRISHNAKURUPPU,MAVULLAPARAMBATH HOUSE, CHENDAYAD P.O.,
PANOOR, THALASSERI, KANNOOR, PIN - 670 692.
21. PROF. MADAVANA BALAKRISHNA PILLAI, AGED 65 YEARS, S/O BALAKRISHN
PILLAI, `PRASANTHI', KUDAMALOOR P.O. , KOTTAYAM, PIN - 686 517.
22. P . N. SUKUMARA PANICKAR, AGED 66 YEARS, S / O
NARAYANAPANICKAR,VANTHANALAYAM, AALA P.O. ,CHENGANNOOR., PIN - 689
126.
23. P. NARAYANAN, AGED 70 YEARS, S/O PARAMESWARAN, `ASWATHY',
CHEMBRA COMPLEX, SHORNOOR, PALAKKADU DISTRICT, PIN - 679 121.
24. PROF. ELANJIYIL RADHAKRISHNAN, AGED 65 YEARS, S/O RADHAKRISHNAN,
RADHA MANSIL, MAYITHARA MARKET P.O., CHERTHALA, ALAPUZHA, PIN - 688
539.
25. A. SURESAN, AGED 66 YEARS, S/O AYYAPPAN, ADVOCATE, AILATHU HOUSE,
ANTHIKADU P.O., THRISSUR, PIN - 680 641.
26. A. BALAKRISHAN NAIR, AGED 67 YEARS, S/O AYYAPPAN NAIR, ADVOCATE,
MANNIPADI ESTATE, MADHOOR, R.D. NAGAR P.O., KASARKODE, PIN - 671
121.
27. K . SREESAKUMAR, AGED 62 YEARS, S/O KRIHNAKUTTY,
ADVOCATE, `SREEPARNNAM', NOOLELI, ASAMANNOOR P.O., ERNAKULAM
DISTRICT, PIN - 682 038.
28. S. MADHU, AGED 65 YEARS, S/O SUKUMARAN, `DEEPTHI', AYYARKULANGARA,
VAIKKOM, PIN - 686 141.
29. V.VIJULAL, AGED 68 YEARS, S/O VIYAYAN, ADVOCATE, THUNDAYYATH
HOUSE, NANGYARKULANGARA P.O., HARIPPAD, PIN - 690 513.
30. R. HARIDAS, AGED 65 YEARS, S/O RADHAKRISHNAN, EDATHITTA,
EDATHITTA HOUSE, AIRAVON P.O., KONNI, PIN - 689 691.
31. ADDL.R31.TGN KUMAR, S/O T V GOPINATHAN, 33/3004, THEKKEMURI- HOUSE,
VENNALA P. O, KOCHI, ERNAKULAM, PIN-682 028 (ADDL.R31 IS IMPLEADED
AS PER ORDER DATED 12.04.2024 IN IA NO.1/2023 IN WP(C) NO.
1717/2023)
WP(C) No.1717/2023 3 / 20
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct the respondents 4 to 30 not to take any policy decisions
affecting the Taluk unions and Karayogams under the 3rd respondent or any
disciplinary actions against the life members of the 3rd respondent
company, pending disposal of the above writ petition.
This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(C) and this Court's order dated
11.04.2024 and upon hearing the arguments of M/S P.CHANDY JOSEPH,
C.K.VIDYASAGAR, T.I.ABDUL SALAM and P.P.MADHUSUDANAN, Advocates for the
petitioners, M/S. E.K.NANDAKUMAR (SR.), GOPIKRISHNAN NAMBIAR M., K.JOHN
MATHAI, JOSON MANAVALAN, KURYAN THOMAS, PAULOSE C. ABRAHAM, RAJA KANNAN,
PRANOY HARILAL, Advocates for the respondents 3 and 5, SRI.P.Gopal,
Advocate for 4th respondent, M/S. P.VISWANATHAN (SR.), SHIBU JOSEPH,
K.T.SEBASTIAN, Advocates for 29th respondent, M/S. BIJU ANTONY ALOOR,
K.P.PRASANTH,VISHNU DILEEP, ARCHANA SURESH, T.S.KRISHENDU, HARITHA
HARIHARAN Advocates for respondent 31, the Court passed the following:
P.T.O
WP(C) No.1717/2023 4 / 20
AMIT RAWAL, J.
=================
WP(C) No.15512 and 1717 of 2023
=====================
Dated this the 12th day of April, 2024
ORDER
Two writ petitions (WP(C) No.15512 of 2023 -first writ petition and WP(C) No.1717 of 2023 - second writ petition) have been filed on behalf of Sri.T.K Gopalakrishnan Nair and another and Prof. V.P Haridas and Another respectively, against the activities of respondent No.3, Nair Service Society (NSS). The 1 st petitioner is the Director of the Board of Directors from 2002 to 2018 and 2nd petitioner is a life member of NSS in WP(C) No.1717 of 2023. Petitioners in other writ petition ie., WP(C) No.15512 of 2023 are also members of the Society representing different areas situated in Kerala. The petitioners have sought indulgence with the following prayers alleging malfunctioning of the 3 rd respondent (NSS), in gross violation of statutory provisions and adoption of practices, which are against the organization, much less, violations of mandatory provisions of Indian Companies Act, 1956, Indian Companies Act, 2013 and Kerala Non Trading Companies Act, 1961 WP(C) No. 15512 of 2023
1) Declare Exhibit P5 notification, SRO No. 959/1977 WP(C) No.1717/2023 5 / 20 WP(C) No.15512 and 1717 of 2023 2 dated 14-10- 1977 issued by Government of Kerala null and void.
ii) Issue necessary prohibitory orders against respondents 4 to 31, from holding the Annual General Meeting of the 3rd respondent Company without restructuring Exhibit P4 Memorandum and Articles of Associations of Respondent No.3 in tune with the provisions of Indian Companies Act 2013 and the Kerala Non Trading Companies Act 1961.
iii) Issue a writ of mandamus against 2nd respondent Registrar, I.G. Registration to initiate penal actions against the erring respondents 4 to 31, for the gross violations of mandatory provisions in the Indian Companies Act 2013, committed by the said respondents after 01-04-2014.
iv) Directing respondent No. 2 not to receive to file any statutory return or statement or other information submitted by respondents 4 o 31 of 3rd respondent company on behalf of the 3rd respondent unless they are filed in compliance with the statutory provisions mandated in the Indian Companies Act 2013 or the rules framed there under and in the forms and manner prescribed by the said rules
v) Direct the 2nd respondent to recommend the 1st respondent State of Kerala to appoint required number of directors to hold office to prevent the 3 rd respondent company going into "status quo" in the event of the entire directors of the 3rd respondent suffering WP(C) No.1717/2023 6 / 20 WP(C) No.15512 and 1717 of 2023 3 disqualification for the violations of mandatory provisions of the Companies Act 2013.
WP(C) No.1717 of 2023
1. Directing the 2nd respondent to consider and pass appropriate orders declaring and notifying u_{1} disqualifications of respondents 4 to 30 to continue an directors of Respondent 3 Public Company by the issuance of a writ of Mandamus or any other appropriate writ, order or direction.
2. Directing the 2nd respondent to notify the disqualifications ORIGI to respondents 4 30 to be appointed as directors in any Indian Company for the ensuing 5 years.
3. Directing the 2nd respondent to declare that the office of the directorship of respondents 4 to 30 in 3rd respondent public company have become vacant under Section 167 of the Indian Companies Act 2013 and to recommend the 1st respondent to appoint the required number of directors to hold office till directors are appointed by the 3rd respondent company in the General Meeting.
2. It has been alleged that 3 rd respondent, (NSS) is a Company registered under Section 26 of Travancore Companies Regulation of 1092 (ME) as a company limited by gurantee under the licence issued by the Government of Travancore dated WP(C) No.1717/2023 7 / 20 WP(C) No.15512 and 1717 of 2023 4 18.3.1925.
3. Owing to the promulgation of the Companies Act, 1956 and later Kerala Non Trading Companies Act, 1961, respondent No3 is governed by the aforementioned provisions of the Act. With effect from 1st April 2014, 1956 Act was repealed and replaced with a new Companies Act 2013. 4 th respondent is the General Secretary of the NSS and 5 th respondent is its President whereas, 6th respondent is the Treasurer and 7 th respondent is the Registrar of NSS. They are the Managerial Personnel's at the helm of affairs of the 3 rd respondent Company. There are about (600) individual members and (5400) members consisting of Karayogam Units registered as members and Taluk Unions. Ext.P3 is the certificate issued under the Travancore Company Regulations bearing No.12/1100 and Memorandum and Articles of Association of the 3 rd respondent is Ext.P4. Respondents 4 to 30 are the Directors running the affairs of the Company alleged to be in gross violation of the mandatory provisions. As per Section 158 of the Companies Act, 2013, every person or company, while furnishing any required, to be furnished under this Act, shall mention the Director Identification Number(DIN) in such return, information or particulars in case such return, information or particulars relate to the director, information or contain any reference of any WP(C) No.1717/2023 8 / 20 WP(C) No.15512 and 1717 of 2023 5 director. The 3rd respondent submitted annual returns for the year 2018-19, 2019-2020 and 2020-21 under Section 92 of the Companies Act, 2013. Copy of the same has been annexed as Exts.P4 to P6 (second writ petition). The model form prescribed for submitting Annual return under Section 92 namely MGT 7 is marked as Ext.P7 and copy of the Model Form for submitting Financial Statement under Section 137 as Ext.P8. The last page of the return provides the space for DIN, AOC Form also provides space for DIN. Section 152(3) of the Companies Act, 2013 mandates that no person shall be appointed as a Director of a company unless allotted the DIN and as per Section 152(4), every person proposed to be appointed as a director is required to furnish an Identification Number, failing which, it will entail into disqualification under Section 164.
4. In the first writ petition, it has been alleged that the respondent Company is denying the rights conferred on the members of the Company to attend the Annual General Meeting of the company, right to vote and to contest for the post of Director.
5. The Articles of Association of 3rd respondent is couched in terms denying the rights guaranteed by the statute, banking on Ext.P5 notification. 2nd Respondent Registrar of Companies under the Non Trading Companies Act despite having WP(C) No.1717/2023 9 / 20 WP(C) No.15512 and 1717 of 2023 6 submitted representation, Ext.P6 in first writ petition, did not take any action in accordance with law. As per the judgments Exts.P8 to P10 in the first writ petition, it has been held by this Court that Non Trading Companies in Kerala have to function under the Companies Act of 2013 and cannot cling on to the provisions of the repealed Act of 1956. There are other inconsistencies and irregularities in the Articles of Association whereby the strength of the AGM has been restricted to (300) whereas the total number of members in the region are more than (6000).
6. As regards the non reference of the DIN number in the returns and other documents, representation dated 20.7.2022 has been submitted to the 2nd respondent but of no avail.
7. In respect of another non Trading Company registered under the Non Trading Companies Act, this court vide judgment dated 5.1.2021, Ext.P11 issued directions to the Inspector General of Registrar to take a decision on the representation within a reasonable period not less than three months and an appeal preferred against the said judgment has also been dismissed as evident from Ext. P12 in the second writ petition.
8. Mr.C.K Vidyasagar, learned counsel appearing for the petitioner in support of the contentions submitted that Section 2 of the Non Trading Companies Act defines a company, other than WP(C) No.1717/2023 10 / 20 WP(C) No.15512 and 1717 of 2023 7 a trading corporation (including banking, insurance and financial corporations), with objects confined to the State of Kerala formed and registered under the Companies Act, 1956 (Central Act I of 1956), as modified by this Act, or an existing company as defined in clause (2) whereas the existing company would mean a company; other than a trading corporation(including banking, insurance and financial corporations), with objects confined to the State of Kerala formed and registered under any of the companies laws. Reliance has also been laid to Section 3 of the Act, 1961, which specifically provided, that the provisions of the Companies Act, 1956 will be applicable to Non Trading Companies with objects confined to the State of Kerala. As per the notification dated 14.10.1977, Ext.P5 in the first writ petition, Government of Kerala had granted exemption for applicability of the various provisions of erstwhile Companies Act, 1956 like Sections 171 to 186 and Sections 433 to 483.
9. The Companies Act, 2013 came into force with effect from 1.4.2014. Thereafter was amended and the provisions of the Companies Act, 1956 were repealed. Reliance has also been laid to the provisions of Section 465 of the 2013 Act, dealing with repealing and saving.
10. On the other hand, learned senior counsel Mr Nanda Kumar, for the respondent submitted that the respondent No.3 WP(C) No.1717/2023 11 / 20 WP(C) No.15512 and 1717 of 2023 8 Company would not be governed by the provisions of 2013 Act in view of notification 1977. In the absence of any new notification issued by the Government granting exemption from the applicability of the Act. Section 3 of the Non Trading Companies Act, 1961 apply only to the applicability of the provisions of the repealed Companies Act, 1956. The 3 rd respondent was a Company which was registered under Section 26 of the Travancore Companies Regulation, 1 of 1092, which was repealed by the Travancore Companies Act 1114 and thereafter, by virtue of Section 8 of the Kerala Non Trading Companies Act, 1961, the Travancore Companies Act, 1114 was repealed and the 3rd respondent came to be governed under the 1961 Act. The 3 rd respondent is a company limited by guarantee with charitable objects and is a 'Non-Trading Company' with its objects confined to the State of Kerala. The legislative power or competence to make laws governing non-trading companies or companies other than trading companies, banking and other financial institutions with objects confined to one State, is by virtue of Entry 32 of the State List under the 7th Schedule to the Constitution of India. The Union of India or the Parliament has absolutely no power to make any law in respect of non-trading corporations or companies falling within Entry 32 of List II in view of the provisions of Article 246(3) of the Constitution of India. On WP(C) No.1717/2023 12 / 20 WP(C) No.15512 and 1717 of 2023 9 account of repealment of the Companies Act, 1956 by the Companies Act, 2013 would not in any manner affect the provisions of the Kerala Act, which has merely copied some provisions of the Companies Act, 1956. With reference to the allegations regarding 'DIN' viz, Sections 152 to 158 of the 2013 Act much less 164 of the Act, 2013 Act would not applicable to the 3rd respondent. Therefore, there is no question of any disqualification of the respondent-Directors. Ext.P11 judgment is also not applicable to the facts and circumstances of the case rather would not come to the rescue of the petitioners, for the reason that this Court did not have the occasion to consider the question as to applicability of the 2013 Act to a non-trading company governed under the Kerala Act.
11. Mr.C.K Vidyasagar has relied upon various judgments ie., Manjo K. @ Kadakampalli Manoj and Another v. Sree Narayana Dharma Paripalana Yogam, Kollam and others (2020 (4) KHC 627), Vijayakumar V and Others v. S.N.D.P Yogam and Others (2022 KHC 3436), Union Christian College, Aluva v. K.C Eapen and Others (2020 (5) KHC 220) and Girnar Traders v. State of Maharashtra and Others (2011 KHC 4032). Mr. Nanda Kumar relied upon judgment of the Supreme Court in Bolani Ores Ltd v. State of Orissa (1974 KLT online 925) to contend that there is a stark difference between legislation by incorporation or by WP(C) No.1717/2023 13 / 20 WP(C) No.15512 and 1717 of 2023 10 reference.
12. I have heard the learned counsel for the parties and appraised the paper book. It would be appropriate to reproduce Section 2 and 3 of the 1961 Act as well as 465 of the 2013 Act.
SECTION 2 OF NON TRADING COMPANIES ACT 1961
2.Definitions.--In this Act and in the Companies Act, 1956 (Central Act I of1956), as applied to the State of Kerala by section 3, unless the context otherwise requires,--
(1)"company" means a company, other than a trading corporation (including banking, insurance and financial corporations), with objects confined to the State of Kerala formed and registered under the Companies Act, 1956 (Central Act I of 1956), as modified by this Act, or an existing company as defined in clause (2); (2)"existing company" means a company; other than a trading corporation(including banking, insurance and financial corporations), with objects confined to the State of Kerala formed and registered under any of the companies laws, specified below:-
(i) Any Act or Acts relating to companies in force before the IndianCompanies Act, 1866 (10 of 1866) and repealed by that Act;
(ii) The Indian Companies Act, 1866 (10 of 1866);
(iii) The Indian companies Act, 1882 (6 of 1882);
(iv) The Indian Companies Act, 1913 (7 of 1913);WP(C) No.1717/2023 14 / 20 WP(C) No.15512 and 1717 of 2023 11
(v) The Registration of Transferred Companies Ordinance 1942 (54 of1942);
(vi) The Travancore Companies Act, 1114 (IX of 1114);
(vii)The Cochin Companies Act, 1120 (XI of 1120);
(viii) The Companies Act, 1956 (I of 1956), before the commencement of this Act;
3.Application of the Companies Act, 1956 (Central Act I of 1956) to non-trading companies with objects confined to the State of Kerala.-The Companies Act, 1956, (Central Act I of 1956), in so far as it is the law relating to companies, other than trading corporations (including banking, insurance and financial corporations), with objects not confined to one State shall, mutatis mutandis, and subject to the modifications specified in the Schedule to this Act, be applicable to the State of Kerala, and shall be the law relating to companies, other than trading corporations (including banking, insurance and financial corporations, with objects confined to the State of Kerala.
Section 465. Repeal of certain enactments and savings. (1) The Companies Act, 1956 (1 of 1956) and the Registration of Companies (Sikkim) Act, 1961 (Sikkim Act 8 of 1961) (hereafter in this section referred to as the repealed enactments) shall stand repealed:
Provided that the provisions of Part IX A of the Companies Act, 1956 (1 of 1956) shall be applicable mutatis mutandis WP(C) No.1717/2023 15 / 20 WP(C) No.15512 and 1717 of 2023 12 to a Producer Company in a manner as if the Companies Act, 1956 has not been repealed until a special Act is enacted for Producer Companies:
Provided further that until a date is notified by the Central Government under subsection (1) of Section 434 for transfer of all matters, proceedings or cases to the Tribunal, the provisions of the Companies Act, 1956 (1 of 1956) in regard to the jurisdiction, powers, authority and functions of the Board of Company Law Administration and court shall continue to apply as if the Companies Act, 1956 has not been repealed:
Provided also that provisions of the Companies Act, 1956 (1 of 1956) referred in the notification issued under section 67 of the Limited Liability Partnership Act, 2008 (6 of 2009) shall, until the relevant notification under such section applying relevant corresponding provisions of this Act to limited liability partnerships is issued, continue to apply as if the Companies Act, 1956 has not been repealed.
(2) Notwithstanding the repeal under sub-section (1) of the repealed enactments,--
(a) anything done or any action taken or purported to have been done or taken, including any rule, notification, inspection, order or notice made or issued or any appointment or declaration made or any operation undertaken or any direction given or any proceeding taken or any penalty, punishment, forfeiture or fine imposed under the repealed enactments shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act;WP(C) No.1717/2023 16 / 20 WP(C) No.15512 and 1717 of 2023 13
(b) subject to the provisions of clause (a), any order, rule, notification, regulation, appointment, conveyance, mortgage, deed, document or agreement made, fee directed, resolution passed, direction given, proceeding taken, instrument executed or issued, or thing done under or in pursuance of any repealed enactment shall, if in force at the commencement of this Act, continue to be in force, and shall have effect as if made, directed, passed, given, taken, executed, issued or done under or in pursuance of this Act;
(c) any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure or existing usage, custom, privilege, restriction or exemption shall not be affected, notwithstanding that the same respectively may have been in any manner affirmed or recognised or derived by, in, or from, the repealed enactments;
(d) any person appointed to any office under or by virtue of any repealed enactment shall be deemed to have been appointed to that office under or by virtue of this Act;
(e) any jurisdiction, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter or thing not in existence or in force shall not be revised or restored;
(f) the offices existing on the commencement of this Act for the registration of companies shall continue as if they have been established under the provisions of this Act;
(g) the incorporation of companies registered under the repealed enactments shall continue to be valid and the provisions of this Act shall apply to such companies as if they were registered under this Act;WP(C) No.1717/2023 17 / 20 WP(C) No.15512 and 1717 of 2023 14
(h) all registers and all funds constituted and established under the repealed enactments shall be deemed to be registers and funds constituted or established under the corresponding provisions of this Act;
(i) any prosecution instituted under the repealed enactments and pending immediately before the commencement of this Act before any Court shall, subject to the provisions of this Act, continue to be heard and disposed of by the said Court;
(j) any inspection, investigation or inquiry ordered to be done under the Companies Act, 1956 (1 of 1956) shall continue to be proceeded with as if such inspection, investigation or inquiry has been ordered under the corresponding provisions of this Act; and
(k) any matter filed with the Registrar, Regional Director or the Central Government under the Companies Act, 1956 (1 of 1956) before the commencement of this Act and not fully addressed at that time shall be concluded by the Registrar, Regional Director or the Central Government, as the case may be, in terms of that Act, despite its repeal.
(3) The mention of particular matters in sub-section (2) shall not be held to prejudice the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal of the repealed enactments as if the Registration of Companies (Sikkim) Act, 1961 (Sikkim Act 8 of 1961) were also a Central Act.
13. Reliance to Section 465 of 2013 Act dealing with repealing and saving clauses, particularly sub clauses, (c), (e), (f) WP(C) No.1717/2023 18 / 20 WP(C) No.15512 and 1717 of 2023 15 and (g) of sub Section 465 of 2013 Act, as per the contention of the learned counsel for the petitioner requires a deliberation by an expert with whom representations in both the writ petitions, as indicated above, have been submitted to the respondent No.2, Inspector of General of Registration, Registrar of Non Trading Companies as per the notification. Time and again, the scope of judicial review has been pondered by the Supreme Court and various courts and it has been consistently held that the court should be circumspect to assume the role of an expert when the controversy as noticed above ie., regarding applicability of the provisions of the Company Act, 2013 or otherwise would be the domain of the competent authority ie., the Deputy Inspector General of Registration (license) as Registrar. For the time being without commenting upon the merit and demerits of the matters, I as an interim measure, issue directions to the Deputy Inspector General of Registration (license) acting as Registrar of the Company as per the Kerala Non Trading Companies Act, 1961 to take a call on the representations Ext.P6 in first writ petition and Ext.P9 in the second writ petition by affording an opportunity of hearing to the petitioners or representatives as well as the contesting respondents as to whether the returns which are being filed by the respondent companies, Directors are required to have DIN number and whether there have been WP(C) No.1717/2023 19 / 20 WP(C) No.15512 and 1717 of 2023 16 irregularities in the Articles of Association and Memorandum of Association as claimed in the prayers (supra) within a period of one month from the date of receipt of a copy of this order. Post on 31.5.2024 to await the report of Deputy Inspector General of Registration (license).
Sd/-
sab AMIT RAWAL, JUDGE
sa/131219sassssabs10.
12-04-2024 /True Copy/ Assistant Registrar
WP(C) No.1717/2023 20 / 20
APPENDIX OF WP(C) 1717/2023
Exhibit P3 TRUE PHOTOCOPY OF THE MEMORANDUM AND ARTICLES OF
ASSOCIATION OF THE 3RD RESPONDENT .
Exhibit P4 TRUE PHOTOCOPY OF THE RELEVANT PORTION OF ANNUAL
RETURNS SUBMITTED FOR THE YEAR 2018-2019 BY THE 3RD RESPONDENT Exhibit P5 TRUE PHOTOCOPY OF THE RELEVANT PORTION ANNUAL RETURNS SUBMITTED FOR THE YEAR 2019-2020 BY THE 3RD RESPONDENT. Exhibit P6 TRUE PHOTOCOPY OF THE RELEVANT PORTION ANNUAL RETURNS SUBMITTED FOR THE YEAR 2020-2021 BY THE 3RD RESPONDENT Exhibit P7 TRUE PHOTOCOPY OF THE E MODEL FORM PRESCRIBED FOR SUBMITTING ANNUAL RETURN UNDER SECTION 92 NAMELY MGT 7 Exhibit P8 TRUE PHOTOCOPY OF MODEL FORM NO AOC/ 4 FOR FILING FINANCIAL STATEMENT UNDER SECTION 137 OF THE COMPANIES ACT Exhibit P9 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 20-07-2022 SUBMITTED BY THE PETITIONER'S BEFORE THE RESPONDENT NO.2 Exhibit P10 TRUE PHOTOCOPY OF THE ACKNOWLEDGEMENT RECEIPT DATED 27.02.2022 ISSUED FROM OFFICE OF THE 2ND RESPONDENT Exhibit P11 TRUE PHOTOCOPY OF THE JUDGMENT DATED 05.01.2021 IN W.P.(C) NO.19266/2020 OF THE HON'BLE HIGH COURT OF KERALA Exhibit P12 TRUE PHOTOCOPY OF THE JUDGMENT DATED 10-01-2022 IN WRIT (APPEAL) NO. 602/20212020 OF THE HON'BLE HIGH COURT OF KERALA 12-04-2024 /True Copy/ Assistant Registrar