Kerala High Court
Ameen Abubakker vs The Registrar Of Companies ... on 24 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 24TH DAY OF NOVEMBER 2021/3RD AGRAHAYANA, 1943
WP(C) NO. 23676 OF 2021
PETITIONER:
AMEEN ABUBAKKER
AGED 42 YEARS
S/O.PONNANCHATAYIL AMUNNY ABUBAKKER, RESIDING AT
PONNANCHATAYIL HOUSE, GANDHINAGAR - 2ND STREET,
CHEROOR P.O., THRISSUR - 680 008.
BY ADVS.
K.R.AVINASH (KUNNATH)
ABDUL RAOOF PALLIPATH
RESPONDENTS:
1 THE REGISTRAR OF COMPANIES -KERALA
COMPANY LAW BHAVAN, BMC ROAD, THRIKKAKKARA,
KOCHI - 682 021.
2 THE SECRETARY
MINISTRY OF CORPORATE AFFAIRS, SHASTRI BHAVAN,
RAJENDRA PRASAD ROAD, NEW DELHI - 110 001.
3 THE UNION OF INDIA
REPRESENTED BY SECRETARY, MINISTRY OF CORPORATE
AFFAIRS, SHASTRI BHAVAN, RAJENDRA PRASAD ROAD,
NEW DELHI - 110 001.
BY SRI.S.MANU, ASGI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) No.23676/2021
:2 :
JUDGMENT
~~~~~~~~~
Dated this the 24th day of November, 2021
The petitioner is Director of more than one
Company incorporated under the Companies Act. The
petitioner was allotted with Director Identification Number
(DIN) 01687567. One of the Companies in which the
petitioner was Director failed to submit Annual
Returns/Financial Statements for a consecutive period of
three years and consequently the petitioner was disqualified to
be Director of other companies, by operation of Section 164(2)
of the Companies Act, 2013. Consequently, the petitioner's
Director Identification Number (DIN) was deactivated. The
petitioner submits that the deactivation is causing
considerable difficulties in fling annual returns/annual financial
statements in respect of the companies in which he continues
WP(C) No.23676/2021
to be a Director. The DIN of the petitioner is liable to be
reactivated, contends the petitioner.
3. I have heard the learned counsel for the petitioner
and the learned Central Government Counsel representing
the respondents.
4. This Court had occasion to consider the legality of
disqualification of Directors of the Company by operation of
Section 164(2) of the Companies Act, 2013 and consequential
deactivation of DIN. In Zacharia Maramkandathil Mohan
and others v. Union of India and Others [2021 (3) KHC
550], this Court held as follows:
"1. Section 164(2) and Section 167(1) of the
Companies Act, 2013 are not ultra vires Article 14 or
Article 19(1)(g) of the Constitution of India.
2. Disqualification of the petitioners under Section
164(2) of the Companies Act, 2013 is by operation of
law and the petitioners are not entitled to any
opportunity of hearing in the matter.
3. Section 164(2) is not retrospective in operation
and only the defaults made by Companies in filing
Financial Statements / Annual Returns in the financial
year 2014-15 and subsequent financial years can be
taken into account for disqualifying a Director under
Section 164(2) of the Companies Act, 2013.
WP(C) No.23676/2021
4. Where disqualification of petitioners is based on
any period of default prior to 01.04.2014, such
disqualifications are bad in law and are hence set
aside.
5. The provisos inserted below Section 164(2) and
Section 167(1)(a) of the Act, 2013 by the Companies
(Amendment) Act, 2017 with effect from 07.05.2018
are constitutionally valid and the same being
clarificatory in nature, would apply retrospectively.
However, the words " in all the companies" appearing
in the proviso to Section 167(1)(a) will have only
prospective operation.
6. Notice under Section 455(4) of the Companies
Act, 2013 is not a sine qua non for applying the
provisions of Section 164(2) or 167 to the Directors of
any Defaulting Company.
7. The Director Identification Numbers (DINs) of the
petitioners allotted under Rule 10 of the Companies
(Appointments and Qualifications of Directors) Rules,
2014, are not liable to be deactivated or cancelled
solely for the reason that the petitioners stand
disqualified for appointment / reappointment as
Directors of Companies by operation of Section 164(2).
8. Consequently, there will be a direction to the
respondents to re-activate the Director Identification
Numbers (DINs) of the petitioners forthwith. However, it
is made clear that the respondents will be at liberty to
cancel or deactivate the DINs of the petitioners for any
reasons laid down in Rule 11 of the Companies
(Appointment and Qualifications of Directors) Rules,
2014.
9. Where the names of any Companies stand
struck off, the petitioners in respect of such Companies
are at liberty to invoke Section 252 of the Companies
Act, 2013 to challenge striking off the names of their
Companies from the Register of Companies and to
resort to legal remedies available to them, to challenge
their disqualification for holding the office of Director."
WP(C) No.23676/2021
The issue raised in this writ petition is covered by the
judgment of this Court in Zacharia Maramkandathil Mohan
and others (supra).
In the facts of the case, the writ petition is disposed
of directing the 1st respondent-Registrar of Companies
(Kerala) to re-activate the Director Identification Number of the
petitioner.
Sd/-
N. NAGARESH, JUDGE
aks/24.11.2021
WP(C) No.23676/2021
APPENDIX OF WP(C) 23676/2021
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE COMPANY MASTER DATA OF
KARP REAL ESTATE ADVISORY SERVICES
PRIVATE LIMITED AVAILABLE IN WEBSITE OF
MINISTRY OF CORPORATE AFFAIRS.
Exhibit P2 TRUE COPY OF THE COMPANY MASTER DATA OF
KENZ INN COMMERCIAL COMPLEX LIMITED
AVAILABLE IN WEBSITE OF MINISTRY OF
CORPORATE AFFAIRS.
Exhibit P3 TRUE COPY OF THE DIRECTOR
IDENTIFICATION NUMBER (DIN) 01687567
AVAILABLE IN THE WEBSITE OF MINISTRY OF
CORPORATE AFFAIRS.
