Kerala High Court
Thefra Technopark Pvt. Ltd vs Union Of India Rep.By Its ... on 23 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 23RD DAY OF FEBRUARY 2021/4TH PHALGUNA, 1942
WP(C).No.3219 OF 2020(B)
PETITIONER:
THEFRA TECHNOPARK PVT. LTD.,
HIG 5 PANAMPILLY NAGAR P.O.,
KANAYANNORE TALUK, ERNAKULAM,
KERALA-682 036, REP.BY ITS DIRECTOR
C.C.THAMBI.
BY ADVS.
SRI.DEEPU THANKAN
SMT.UMMUL FIDA
SMT.LAKSHMI SREEDHAR
RESPONDENTS:
1 UNION OF INDIA REP.BY ITS SECRETARY
MINISTRY OF CORPORATE AFFAIRS,
RAJENDRA PRASAD ROAD, NEW DELHI-110 001.
2 REGISTRAR OF COMPANIES, KERALA
COMPANY LAW BHAVAN, THRIKKAKARA P.O.,
ERNAKULAM, KOCHI-682 011.
R1-R2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
23.02.2021, ALONG WITH WP(C)3250/2020(E), WP(C)7604/2020(A),
WP(C)7612/2020(B), WP(C)7833/2020(D), THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C)No.3219/2020 & CONN.CASES
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY,THE 23RD DAY OF FEBRUARY 2021/4TH PHALGUNA,1942
WP(C).No.3250 OF 2020(E)
PETITIONER:
THEFRA HOTELS PVT. LTD.,
BUILDING NO.33/2379 (46/2159),
B1, B2, C, C1, D & D1, N.H.BYEPASS,
THAMMANAM, ERNAKULAM, KERALA-682 032,
REP. BY ITS DIRECTOR, C.C.THAMBI.
BY ADVS.
SRI.DEEPU THANKAN
SMT.UMMUL FIDA
SMT.LAKSHMI SREEDHAR
RESPONDENTS:
1 UNION OF INDIA REP. BY ITS SECRETARY,
MINISTRY OF CORPORATE AFFAIRS,
RAJENDRA PRASAD ROAD, NEW DELHI-110 001.
2 REGISTRAR OF COMPANIES, KERALA,
COMPANY LAW BHAVAN, THRIKKAKARA P.O.,
ERNAKULAM, KOCHI-682 011.
R1-R2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF
INDIA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 23.02.2021, ALONG WITH WP(C)3219/2020(B),
WP(C)7604/2020(A), WP(C)7612/2020(B), WP(C)7833/2020(D),
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)No.3219/2020 & CONN.CASES
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY,THE 23RD DAY OF FEBRUARY 2021/4TH PHALGUNA,1942
WP(C).No.7604 OF 2020(A)
PETITIONER:
KOYO ELEVATORS INDIA PRIVATE LTD.,
FIRST FLOOR ANJAN COMPLEX,
VYTILLA AROOR BYE PASS ROAD,
KUNDANNOOR, KOCHI-682 304,
REPRESENTED BY ITS DIRECTOR,
P.RADHAKRISHNAN NAIR.
BY ADVS.
SRI.DEEPU THANKAN
SMT.UMMUL FIDA
SMT.LAKSHMI SREEDHAR
RESPONDENTS:
1 UNION OF INDIA REP. BY ITS SECRETARY,
MINISTRY OF CORPORATE AFFAIRS,
RAJENDRA PRASAD ROAD, NEW DELHI-110 001.
2 REGISTRAR OF COMPANIES, KERALA
COMPANY LAW BHAVAN, THRIKKAKARA P.O.,
ERNAKULAM, KOCHI-682 011.
R1-R2 BY SMT.SREEKALA K.L., CGC
SRI P.VIJAYAKUMAR, ASGI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 23.02.2021, ALONG WITH WP(C)3219/2020(B),
WP(C)3250/2020(E), WP(C)7612/2020(B), WP(C)7833/2020(D),
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)No.3219/2020 & CONN.CASES
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY,THE 23RD DAY OF FEBRUARY 2021/4TH PHALGUNA,1942
WP(C).No.7612 OF 2020(B)
PETITIONER:
KURIAN'S TRADING COMPANY PRIVATE LTD.,
FIRST FLOOR ANJAN COMPLEX,
VYTTILA AROOR BYE PASS ROAD,
KUNDANNOOR, KOCHI-682 304,
REP BY ITS DIRECTOR,
P.RADHAKRISHNAN NAIR
BY ADVS.
SRI.DEEPU THANKAN
SMT.UMMUL FIDA
SMT.LAKSHMI SREEDHAR
RESPONDENTS:
1 UNION OF INDIA REP. BY ITS SECRETARY,
MINISTRY OF CORPORATE AFFAIRS,
RAJENDRA PRASAD ROAD, NEW DELHI-110 001.
2 REGISTRAR OF COMPANIES, KERALA
COMPANY LAW BHAVAN, THRIKKAKARA P.O.,
ERNAKULAM, KOCHI-682 011.
R1-R2 BY SRI.K.SHRI HARI RAO, CGC
SRI P.VIJAYAKUMAR, ASGI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 23.02.2021, ALONG WITH WP(C)3219/2020(B),
WP(C)3250/2020(E), WP(C)7604/2020(A), WP(C)7833/2020(D),
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)No.3219/2020 & CONN.CASES
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY,THE 23RD DAY OF FEBRUARY 2021/4TH PHALGUNA,1942
WP(C).No.7833 OF 2020(D)
PETITIONER:
LINTEX CONSTRUCTIONS AND PROPERTIES
PRIVATE LTD.,FIRST FLOOR, ANJANA COMPLEX,
VYTTILA AROOR BYE PASS ROAD,
KUNDANNOOR, KOCHI - 682 304,
REP. BY ITS DIRECTOR
SHAJI KALLADAYIL MATHEW.
BY ADVS.
SRI.DEEPU THANKAN
SMT.UMMUL FIDA
SMT.LAKSHMI SREEDHAR
MRS.S.SREELAKSHMY
RESPONDENTS:
1 UNION OF INDIA, REP. BY ITS SECRETARY,
MINISTRY OF CORPORATE AFFAIRS,
REJANDRA PRASAD ROAD, NEW DELHI - 110 001.
2 REGISTRAR OF COMPANIES, KERALA
COMPANY LAW BHAVAN, THRIKKAKARA P.O.,
ERNAKULAM, KOCHI - 682 011.
R1-R2 BY SRI.R.PRASANTH KUMAR, CGC
SRI P.VIJAYAKUMAR, ASGI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 23.02.2021, ALONG WITH WP(C)3219/2020(B),
WP(C)3250/2020(E), WP(C)7604/2020(A), WP(C)7612/2020(B),
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)No.3219/2020 & CONN.CASES
6
JUDGMENT
Dated this the 23rd day of February, 2021
The petitioners, who are Companies incorporated with
the Registrar of Companies, Kerala, have filed these writ
petitions seeking to direct the respondents to permit the
petitioners to file e-form ACTIVE, INC-22A without insisting
on appointment of a whole-time Company Secretary. The
petitioners have also sought to declare that the restriction
imposed in filing e-form ACTIVE, INC-22A with regard to
non-compliance of Section 203 of a whole-time Company
Secretary or Rule 8A of the Companies (Appointment and
Remuneration of Managerial Personnel) Rules, 2014 is
arbitrary and illegal.
2. The petitioners submit that the 1st respondent-
Union of India, in exercise of its powers under Section 469
of the Companies Act, 2013 amended the Companies
WP(C)No.3219/2020 & CONN.CASES
(Incorporation) Rules, 2014 as per Notification dated
21.02.2019. As per the new added Rule 25A, every
Company incorporated on or before 31.12.2017 shall file the
particulars of the Company and its registered office in e-form
ACTIVE (Active Company Tagging Identities and
Verification) on or before 25.04.2019. It is the contention of
the petitioners that the website of the Ministry of Corporate
Affairs is not accepting e-form ACTIVE submitted by the
petitioners for the reason that the paid up capital is more
than ₹5 Crores and still the petitioners-Companies have not
appointed whole-time Company Secretary.
3. It is the case of the petitioners that as per Section
203(5), if any Company makes any default in complying with
the provisions, such Company shall be liable for a penalty of
₹5 lakhs and Directors and Key Managerial Personnel are
personally liable for a penalty of ₹50,000/- and if the default
is a continuing one, with a further penalty of ₹1,000/- for
each day.
WP(C)No.3219/2020 & CONN.CASES
4. The petitioners contend that they have part-time
Company Secretaries and Auditors to properly look after the
affairs of their Companies and for the last so many years,
they have been functioning well within the provisions of the
Act without giving any room for initiating any penalty
proceedings. On these premises, the petitioners contend
that they should not be forced to appoint a whole-time
Company Secretary and should be permitted to file e-form
ACTIVE, INC-22A without insisting on the appointment of a
whole-time Company Secretary.
5. When these writ petitions came up for admission,
interim orders were passed by this Court permitting the
petitioners to file e-form ACTIVE, INC-22A, Form PAS-03
(change in paid up capital) and Form DIR-12 (change in
Director except cessation) without insisting on appointment
of a whole-time Company Secretary provisionally, pending
further orders in these writ petitions.
WP(C)No.3219/2020 & CONN.CASES
6. When these writ petitions came up for hearing
today, the Central Government Counsel representing the
respondents argued that as per the existing rules, the
petitioners are bound to appoint whole-time Company
Secretaries, as their paid up capital is more than ₹5 Crores.
The petitioners cannot be granted any exemption from the
Rules.
7. The Central Government Counsel further argued
that non-appointment of Company Secretary by petitioners-
Companies is an offence under Section 383A (1A) vide
Companies (Amendment) Act, 1988 with effect from
01.12.1988. If a Company fails to comply with the
requirement regarding the appointment of Company
Secretary, the Company and every officer of the Company
who is in default shall be punishable with fine which may
extend to ₹500/- per every day during which the default
continues.
WP(C)No.3219/2020 & CONN.CASES
8. Heard learned counsel for the petitioners and
learned Central Government Counsel appearing for the
respondents.
9. As things stand now, the petitioners have been
permitted to file e-form ACTIVE, INC-22A without insisting
the appointment of a whole-time Company Secretary, on a
provisional basis. Section 203(5) of the Companies Act
provides that if any Company makes any default in
complying with the provisions of Section 203 relating to
appointment of Key Managerial Personnel, such Company
shall be liable to a penalty of ₹5 lakhs and every Directors
and Key Managerial Personnel of the Company, who is in
default, shall be liable to a penalty of ₹50,000/- and where
the default is a continuing one, with further penalty of
₹1,000/- for each day after the first during which such
default continues but not exceeding ₹5 lakhs.
10. It is evident that the petitioner-Companies have
not adhered to the provisions of the Companies Act,
WP(C)No.3219/2020 & CONN.CASES
especially Section 203 thereof. In such circumstances, the
respondents are empowered to proceed against the
petitioner-Companies, in accordance with law.
In the circumstances, the writ petitions are
disposed of granting liberty to the respondents to proceed
against the petitioner-Companies for violating Section 203 of
the Companies Act, if they are so advised. It is made clear
that the interim orders passed in these writ petitions shall not
be taken as pronouncement on merits on the legality of
Section 203 of the Companies Act, 2013 or Rule 8A of the
Companies (Appointment and Remuneration of Managerial
Personnel) Rules, 2014.
Sd/-
N. NAGARESH
JUDGE
ncd/23.02.2021
WP(C)No.3219/2020 & CONN.CASES
APPENDIX OF WP(C) 3219/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF
INCORPORATION ISSUED BY THE SECOND
RESPONDENT DATED 19.8.2014.
EXHIBIT P2 TRUE COPY OF THE MASTER DATA OF THE
PETITIONER COMPANY PUBLISHED IN THE
OFFICIAL WEBSITE OF THE MINISTRY OF
CORPORATE AFFAIRS.
EXHIBIT P3 TRUE COPY OF THE GAZETTE NOTIFICATION
ISSUED BY THE MINISTRY OF CORPORATE
AFFAIRS OF THE FIRST RESPONDENT DATED
21.2.2019.
EXHIBIT P4 TRUE COPY OF THE NOTIFICATION ISSUED BY
THE FIRST RESPONDENT DATED 21.2.2019.
EXHIBIT P5 TRUE COPY OF THE NOTIFICATION DATED
31.3.2014 COMPANIES (APPOINTMENT AND
REMUNERATION OF MANAGERIAL PERSONNEL)
RULES, 2014 WITH ITS AMENDMENTS.
EXHIBIT P6 A TRUE COPY OF THE INTERIM ORDER PASSED
BY THIS HON'BLE COURT IN WPC NO.640/2020
DATED 20.1.2020.
WP(C)No.3219/2020 & CONN.CASES
APPENDIX OF WP(C) 3250/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF
INCORPORATION ISSUED BY THE SECOND
RESPONDENT DATED 27.01.2014.
EXHIBIT P2 TRUE COPY OF THE MASTER DATA OF THE
PETITIONER COMPANY PUBLISHED IN THE
OFFICIAL WEBSITE OF THE MINISTRY OF
CORPORATE AFFAIRS.
EXHIBIT P3 TRUE COPY OF THE GAZETTE NOTIFICATION
ISSUED BY THE MINISTRY OF CORPORATE
AFFAIRS OF THE FIRST RESPONDENT DATED
21.02.2019.
EXHIBIT P4 TRUE COPY OF THE NOTIFICATION ISSUED BY
THE FIRST RESPONDENT DATED 21.02.2019.
EXHIBIT P5 TRUE COPY OF THE NOTIFICATION DATED
31.03.2014 COMPANIES (APPOINTMENT AND
REMUNERATION OF MANAGERIAL PERSONNEL)
RULES 2014 WITH ITS AMENDMENTS.
EXHIBIT P6 A TRUE COPY OF THE INTERIM ORDER PASSED
BY THIS HON'BLE COURT IN WPC NO.640/2020
DATED 20.01.2020.
WP(C)No.3219/2020 & CONN.CASES
APPENDIX OF WP(C) 7604/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF
INCORPORATION ISSUED BY THE SECOND
RESPONDENT DATED 13.2.2006.
EXHIBIT P2 TRUE COPY OF THE MASTER DATA OF THE
PETITIONER COMPANY PUBLISHED IN THE
OFFICIAL WEBSITE OF THE MINISTRY OF
CORPORATE AFFAIRS.
EXHIBIT P3 TRUE COY OF THE GAZETTE NOTIFICATION
ISSUED BY THE MINISTRY OF CORPORATE
AFFAIRS OF THE FIRST RESPONDENT DATED
21.2.2019.
EXHIBIT P4 TRUE COPY OF THE NOTIFICATION ISSUED BY
THE FIRST RESPONDENT DATED 21.2.2019.
EXHIBIT P5 TRUE COPY OF THE NOTIFICATION DATED
31.3.2014 COMPANIES (APPOINTMENT AND
REMUNERATION OF MANAGERIAL PERSONNEL),
RULES, 2014 WITH ITS AMENDMENTS.
EXHIBIT P6 A TRUE COPY OF THE INTERIM ORDER PASSED
BY THIS HON'BLE COURT IN WPC NO.27/2020
DATED 7.1.2020.
WP(C)No.3219/2020 & CONN.CASES
APPENDIX OF WP(C) 7612/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF
INCORPORATION ISSUED BY THE SECOND
RESPONDENT DATED 17.11.2005
EXHIBIT P2 TRUE COPY OF THE MASTER DATED OF THE
PETITIONER COMPANY PUBLISHED IN THE
OFFICIAL WEBSITE OF THE MINISTRY OF
CORPORATE AFFAIRS
EXHIBIT P3 TRUE COPY OF THE GAZETTEE NOTIFICATION
ISSUED BY THE MINISTRY OF CORPORATE
AFFAIRS OF THE FIRST RESPONDENT DATED
21.02.2019
EXHIBIT P4 TRUE COPY OF THE NOTIFICATION ISSUED BY
THE FIRST RESPONDENT DATED 21.02.2019
EXHIBIT P5 TRUE COPY OF THE NOTIFICATION DATED
31.03.2014 COMPANIES (APPOINTMENT AND
REMUNERATION OF MANAGERIAL PERSONNEL)
RULES, 2014 WITH ITS AMENDMENTS
EXHIBIT P6 A TRUE COPY OF THE INTERIM ORDER PASSED
BY THIS HON'BLE COURT IN WP(C)NO.27/2020
DATED 07.01.2020
WP(C)No.3219/2020 & CONN.CASES
APPENDIX OF WP(C) 7833/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF
INCORPORATION ISSUED BY THE SECOND
RESPONDENT DATED 25/05/2007.
EXHIBIT P2 TRUE COPY OF THE MASTER DATA OF THE
PETITIONER COMPANY PUBLISHED IN THE
OFFICIAL WEBSITE OF THE MINISTRY OF
CORPORATE AFFAIRS.
EXHIBIT P3 TRUE COPY OF THE GAZETTE NOTIFICATION
ISSUED BY THE MINISTRY OF CORPORATE
AFFAIRS OF THE FIRST RESPONDENT DATED
21/02/2019.
EXHIBIT P4 TRUE COPY OF THE NOTIFICATION ISSUED BY
THE FIRST RESPONDENT DATED 21/02/2019.
EXHIBIT P5 TRUE COPY OF THE NOTIFICATION DATED
31/3/2014 COMPANIES (APPOINTMENT AND
REMUNERATION OF MANAGERIAL PERSONNEL)
RULES 2014 WITH ITS AMENDMENTS.
EXHIBIT P6 A TRUE COPY OF THE INTERIM ORDER PASSED
BY THIS HON'BLE COURT IN WPC NO.27/2020
DATED 07/01/2020.
