Abish Jose vs Registrar Of Companies (Roc), ...
2022 Latest Caselaw 3364 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
   TUESDAY, THE 22ND DAY OF MARCH 2022/1ST CHAITHRA, 1944
                     WP(C) NO. 4251 OF 2022


PETITIONER:

         ABISH JOSE, AGED 41 YEARS,
         S/O. MR. JOSE PYNADATH KORATH,
         RESIDING AT 348(176), PYNADATH, 3,
         MOODAPUZHA, KORATTY PANCHAYAT,
         MUKUMDAPURAM,
         THRISSUR DISTRICT - 680 308.

         BY ADVS.
         SREEDEVI KYLASANATH
         ACHUTH KYLAS
         R.MAHESH MENON
         DEAGO JOHN K


RESPONDENT:

         REGISTRAR OF COMPANIES (ROC), ERNAKULAM,
         HAVING ITS OFFICE AT COMPANY LAW BHAWAN,
         BMC ROAD, THRIKKAKARA, KOCHI,
         ERNAKULAM DISTRICT - 682 021.

         BY ADV.SRI.V.GIRISH KUMAR, CGC

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) No.4251/2022

                                2




                           JUDGMENT

Dated this the 22nd day of March, 2022

The petitioner, who is Director of a Private Limited

Company namely Haymaker Agro Pvt. Ltd., is before this

Court seeking to direct the respondent to revoke/remove

the disqualification imposed on the petitioner under Section

164(2)(b) of the Companies Act, 2013. The petitioner seeks

further direction to the respondent to activate the petitioner's

Director Identification Number (DIN).

2. The petitioner states that consequent to the

failure of the Company to file annual returns/financial

statements for a consecutive period of three years, the

petitioner was disqualified to hold the post of Director.

Consequentially, the petitioner's DIN 07232854 was

deactivated. The petitioner is before this Court challenging

the disqualification as well as deactivation of DIN. WP(C) No.4251/2022

3. The learned Central Government Counsel

appeared and submitted that the issue involved in this case

is covered by a judgment of this Court in Zacharia

Maramkandathil Mohan and others v. Union of India and

others [2021 (3) KHC 550]. In the judgment, 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.

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 WP(C) No.4251/2022

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.4251/2022

4. In view of the law laid down by this Court in

Zacharia Maramkandathil Mohan (supra), the petitioner's

DIN is liable to be reactivated. As regards the prayer of the

petitioner to set aside the disqualification, the petitioner will

have to resort to alternative remedies available to him.

In the circumstances, the writ petition is disposed of

directing the respondent to activate the DIN of the petitioner

forthwith. The petitioner will be at liberty to challenge his

disqualification under Section 164(2) of the Companies Act,

2013 before appropriate Forum.

Sd/-

N. NAGARESH JUDGE ncd/23.03.2022 WP(C) No.4251/2022

APPENDIX OF WP(C) 4251/2022

PETITIONER'S EXHIBITS

Exhibit P1 A TRUE COPY OF THE CERTIFICATE OF INCORPORATION ISSUED BY THE RESPONDENT.

Exhibit P2 A TRUE COPY OF THE MASTER DATA PUBLISHED IN THE WEBSITE OF THE MINISTRY OF CORPORATE AFFAIRS.

Exhibit P3 A TRUE COPY OF THE MEMORANDUM OF ASSOCIATION.

Exhibit P4 A TRUE COPY OF THE ARTICLES OF ASSOCIATION.

Exhibit P5 A TRUE COPY OF THE BOARD RESOLUTION DATED 15TH SEPTEMBER, 2015 APPROVING THE APPOINTMENT OF MR. THOMAS GRAHAM JAMES GIBSON AS THE MANAGING DIRECTOR AND RESIGNATION OF MS. SMITHA DAMODARAN.

Exhibit P6 A TRUE COPY OF THE LETTER DATED 11TH JULY, 2019.

Exhibit P7 A TRUE COPY OF THE PUBLIC NOTICE DATED 6TH AUGUST, 2019.