Madras High Court
Karthikeyan Sundaresan vs The Registrar Of Companies on 20 April, 2021
W.P.No.9101 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.04.2021
CORAM
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
W.P.No.9101 of 2021
and W.M.P.Nos.9645 and 9649 of 2021
(Heard Through VC)
Karthikeyan Sundaresan .. Petitioner
Vs.
1. The Registrar of Companies,
The Office of the Registrar of Companies,
5th Floor, Shastri Bhawan,
No.26, Haddows Road,
Chennai – 600 006.
2. Union of India,
Represented by its Secretary,
Ministry of Corporate Affairs,
Shastri Bhawan, Dr.Rajendra Prasad Road,
New Delhi – 110 001. .. Respondents
***
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of certiorarified Mandamus calling for the records of
the first respondent relating to the impugned notice dated 01.11.2017
uploaded in the website of the second respondent insofar as the petitioner
herein is concerned, quash the same as illegal, arbitrary and devoid of merit
and consequentially direct the respondents herein to permit petitioner to get
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W.P.No.9101 of 2021
reappointed as Director of any company or appointed as Director in any
company without any hindrance.
For Petitioner : Mr.K.M.Anand
For Respondents : Mr.J.Madhanagopal Rao
Central Government Standing Counsel
ORDER
Mr.J.Madhanagopal Rao, learned Central Government Standing
Counsel takes notice for the respondents.
2. By consent of the parties, this writ petition is taken up for final
disposal at the admission stage itself.
3. Challenge is laid to the order of the first respondent dated
01.11.2017, insofar as the petitioner is concerned, and consequential
direction is sought for to direct the respondents herein to permit the
petitioner to get reappointed as Director of any company or appointed as
Director in any company without any hindrance.
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W.P.No.9101 of 2021
4. Heard the learned counsel on either side and perused the materials
placed before this Court.
5. The issue involved in this writ petition is no more a res integra. It
is to be stated that the Registrar of Companies (RoC) has been disqualifying
the Directors under Section 164(2)(a) of the Companies Act, 2013 by order
dated 08.09.2017. Another list was published in the website of the first
respondent on 01.11.2017 disqualifying the Directors. Yet another list of
Directors were disqualified on 17.12.2018 by the RoC.
6. Several of the Directors so disqualified under the above mentioned
notifications dated 08.09.2017 and 01.11.2017 challenged the same before
this Court and this Court by order dated 03.08.2018 in Bhagavan Das
Dhananjaya Das V.Union of India, (2018) 6 MLJ 704, allowed the batch
of writ petitions and set aside the aforesaid notifications/orders.
7. The notification dated 17.12.2018, which was uploaded in the
website by the second respondent on 18.12.2018 was challenged on the
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W.P.No.9101 of 2021
strength of the judgment of this Court in Bhagavan Das case (cited supra).
However, they were dismissed by this Court, and such orders were passed
on 27.01.2020 and 10.02.2020, etc. The said orders were put to challenge in
a batch of writ appeals, which were dealt with by the Hon'ble First Bench of
this Court in W.A.No.569 of 2020, etc. batch (Meethelaveetil Kaitheri
Muralidharan V. Union of India, 2020 SCC OnLine Mad 2958 : (2020)
6 CTC 113). The Hon'ble Division Bench in the said order dealt with the
powers of the RoC in the light of Sections 164 and 167(1) of the Companies
Act, 2013 and Rule 14 of the Companies (Appointment and Qualifications
of Directors) Rules, 2014 and also has elaborately considered as to whether
the RoC is entitled to deactivate the Director Identification Number (DIN)
by referring to the Rules 19, 10 and 11 of the said 2014 Rules and held as
follows :
"41. As is evident from the above, Rules 9 and 10 deals
with the application for allotment of DIN. Rule 10(6) specifies
that the DIN is valid for the life time of the applicant and shall
not be allotted to any other person. Rule 11 provides for the
cancellation or surrender or deactivation of the DIN. It is very
clear upon examining Rule 11 that neither cancellation nor
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W.P.No.9101 of 2021
deactivation is provided for upon disqualification under
Section 164(2) of CA 2013. In this connection, it is also
pertinent to refer to Section 167(1) of CA 2013 which provides
for vacating the office of director by a director of a Defaulting
Company. As a corollary, it follows that if a person is a
director of five companies, which may be referred to as
companies A to E, if the default is committed by company A by
not filing financial statements or annual returns, the said
director of company A would incur disqualification and would
vacate office as director of companies B to E. However, the
said person would not vacate office as director of company A.
If such person does not vacate office and continues to be a
director of company A, it is necessary that such person
continues to retain the DIN. In this connection, it is also
pertinent to point out that it is not possible to file either the
financial statements or the annual returns without a DIN.
Consequently, the director of Defaulting Company A, in the
above example, would be required to retain the DIN so as to
make good the deficiency by filing the respective documents.
Thus, apart from the fact that the AQD Rules do not empower
the ROC to deactivate the DIN, we find that such deactivation
would also be contrary to Section 164(2) read with 167(1) of
CA 2013 inasmuch as the person concerned would continue to
be a director of the Defaulting Company.
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W.P.No.9101 of 2021
*****
43. In the result, these appeals are allowed by setting
aside the impugned order dated 27.01.2020. Consequently, the
publication of the list of disqualified directors by the ROC and
the deactivation of the DIN of the Appellants is hereby
quashed. As a corollary to our conclusion on the deactivation
of DIN, the DIN of the respective directors shall be reactivated
within 30 days of the date of receipt of a copy of this order.
Nonetheless, we make it clear that it is open to the ROC
concerned to initiate action with regard to disqualification
subject to an enquiry to decide the question of attribution of
default to specific directors by taking into account the
observations and conclusions herein. No costs. Consequently,
connected miscellaneous petitions are closed."
8. In view of the aforesaid position, following the decision of the
Hon'ble First Bench of this Court in Meethelaveetil Kaitheri
Muralidharan's case (supra), the writ petition is allowed, in the terms
indicated in the aforesaid judgment. No costs. Consequently, connected
miscellaneous petitions are closed.
20.04.2021
Index : Yes / No
Internet : Yes/No
srn
https://www.mhc.tn.gov.in/judis/
W.P.No.9101 of 2021
To
1. The Registrar of Companies,
The Office of the Registrar of Companies,
5th Floor, Shastri Bhawan,
No.26, Haddows Road,
Chennai – 600 006.
2. The Secretary,
Union of India,
Ministry of Corporate Affairs,
Shastri Bhawan, Dr.Rajendra Prasad Road,
New Delhi – 110 001.
https://www.mhc.tn.gov.in/judis/
W.P.No.9101 of 2021
PUSHPA SATHYANARAYANA, J.
srn
W.P.No.9101 of 2021
and W.M.P.Nos.9645 and 9649 of 2021
20.04.2021
https://www.mhc.tn.gov.in/judis/
