Madras High Court

Mahesh Sandeep Kumar vs Union Of India on 3 August, 2021

WP No. 16131 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 03.08.2021

Coram

THE HONOURABLE MR. JUSTICE R. MAHADEVAN

Writ Petition No. 16131 of 2021
and
WMP No. 17058 and 17059 of 2021
--

Mahesh Sandeep Kumar .. Petitioner

Versus

1. Union of India
represented by its Secretary
Ministry of Corporate Affairs
Shastri Bhawan
Dr. Rajendra Prasad Road
New Delhi - 110 001

2. Registrar of Companies
Tamil Nadu, Chennai
Block No.6, "B" Wing, 2nd Floor
Shastri Bhawan
No.26, Haddows Road
Chennai - 600 006 .. Respondents

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 second respondent relating to the impugned order dated 13.12.2019
uploaded and hosted on the website of the first respondent in so far as the
petitioner herein is concerned, quash the status 'disqualified under Section 164
(2)" against his Director Identification Number (DIN No.06443033) as illegal,
arbitrary and devoid of merit and consequently direct the respondents herein to
permit the petitioner to get re-appointed as Director in any company without
any hindrance.
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WP No. 16131 of 2021

For Petitioner : Mr. P. Raj Kumar Jhabakh

For Respondents : Mrs. A. Anuradha, ACGSC

ORDER

The petitioner has filed this writ petition to issue a Writ of Certiorarified

Mandamus to call for the records relating to the order dated 13.12.2019 of the

second respondent which was uploaded and hosted on the website of the first

respondent in so far as the petitioner herein is concerned, quash the status

'disqualified under Section 164 (2)" against his Director Identification Number

(DIN No.06443033) as illegal, arbitrary and devoid of merit and consequently

direct the respondents herein to permit the petitioner to get re-appointed as

Director in any company without any hindrance.

2. According to the petitioner, the second respondent released a list

of disqualified directors, who have been disqualified under Section 164(2)(a)

of the Companies Act, 2013, as directors with effect from 01.11.2018, in

which, his name was also mentioned (DIN No.06443033). In other words, the

second respondent, by including the name of the petitioner, has disqualified

him as Director under Section 164(2)(a) of the Companies Act, 2013 for non-

filing of financial statements or annual returns for continuous period of three

financial years by the defaulting companies on whose board, the petitioner is https://www.mhc.tn.gov.in/judis/

WP No. 16131 of 2021

also a Director, due to which, he is prohibited from being appointed or

reappointed as director in any other company for a period of 5 years. Stating

that the action so taken by the second respondent is arbitrary and

unreasonable, the petitioner has filed the present writ petition with the

aforesaid prayer.

3. Today, when the matter is taken up for consideration, the learned

counsel appearing for the parties jointly submitted that the issue involved

herein is no longer res integra. Earlier, this Court by order dated 03.08.2018 in

WP.No.25455 of 2017 etc. batch, in Bhagavan Das Dhananjaya Das case

reported in (2018) 6 MLJ 704, allowed those writ petitions and set aside the

orders dated 08.09.2017, 01.11.2017, 17.12.2018, etc. passed by the Registrar

of Companies, disqualifying the petitioners therein to hold the office of

directorship of the companies under Section 164(2)(a) of the Companies Act,

which came into effect from 01.04.2014. Thereafter, yet another set of

disqualified directors approached this court by filing WP.No.13616 of 2018

etc. batch (Khushru Dorab Madan v. Union of India) which were dismissed

by order dated 27.01.2020. The said order of the learned single judge was

challenged by some of the petitioners therein before the Division Bench of this

Court in W.A.No.569 of 2020, etc. batch (Meethelaveetil Kaitheri https://www.mhc.tn.gov.in/judis/

WP No. 16131 of 2021

Muralidharan v. Union of India, 2020 SCC OnLine Mad 2958 : (2020) 6

CTC 113), which after elaborately dealt with the issue as to whether the RoC

is entitled to deactivate the Director Identification Number (DIN), allowed

those writ appeals on 09.10.2020, the relevant passage of which, are

profitably, extracted below:

"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 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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WP No. 16131 of 2021

42. In light of the above analysis, we concur with the views of the Delhi High Court in Mukut Pathak, the Allahabad High Court in Jai Shankar Agrahari and the Gujarat High Court in Gaurang Balvantlal Shah to the effect that the ROC is not empowered to deactivate the DIN under the relevant rules. In Yashodhara Shroff, the Karnataka High Court upheld the constitutionality of Section 164(2) and proceeded to hold that a prior or post decisional hearing is not necessary. For reasons detailed in preceding paragraphs, we disagree with the view of the Karnataka High Court that prior notice is not required under Section 164(2) of CA 2013.

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."

4. Therefore, following the aforesaid decision, the writ petition

stands allowed, in the terms as indicated in the judgment in Meethelaveetil

Kaitheri Muralidharan's case. No costs. Consequently, connected

miscellaneous petitions are closed.

03-08-2021

rsh

https://www.mhc.tn.gov.in/judis/

WP No. 16131 of 2021

R. MAHADEVAN, J

rsh

1. Union of India represented by its Secretary Ministry of Corporate Affairs Shastri Bhawan Dr. Rajendra Prasad Road New Delhi - 110 001

2. Registrar of Companies Tamil Nadu, Chennai Block No.6, "B" Wing, 2nd Floor Shastri Bhawan No.26, Haddows Road Chennai - 600 006