Anbuthambi vs Union Of India
2021 Latest Caselaw 4981 Mad

Citation : 2021 Latest Caselaw 4981 Mad
Judgement Date : 25 February, 2021

Madras High Court

Anbuthambi vs Union Of India on 25 February, 2021

W.P. No.4083 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 25.02.2021

CORAM

THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE

W.P. No.4083 of 2021
and
WMP Nos.4652 and 4654 of 2021

Anbuthambi .... Petitioner

Vs.

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

2. The Registrar of Companies,
Tamil Nadu, Chennai
Block No.6, B Wing, 2nd Floor,
Shastri Bhawan,
26, Haddows Road,
Chennai – 600 034. .... Respondents

Writ Petition filed under Article 226 of the Constitution of India to issue a
Writ of Certiorarified Mandamus calling for the records of the 2nd
respondent relating to the impugned order dated 17.12.2018 uploaded in the

1/6

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W.P. No.4083 of 2021

website of the 1st respondent in so far as the petitioner herein vide DIN
-03224200 is concerned, quash the same as illegal, arbitrary and devoid of
merit and consequentially direct the respondents 1 and 2 herein to permit
Petitioner to get reappointed as Director of the Company or appointed as
Director in other company without any hindrance.
For Petitioner : Mr. N.V. Prakash
For Respondents : Mr. V.Ashok Kumar
Central Govt. Standing Counsel
ORDER

Mr.V.Ashok Kumar, learned Central Government Standing Counsel

accepts notice for the respondents.

2. This writ petition has been filed challenging the disqualification of

the petitioner as Director under Section 164(2)(a) of the Companies Act,

2013 on the ground that he has not submitted financial statements for three

consecutive financial years. The petitioner has challenged the impugned

order dated 17.12.2018 passed by the second respondent on the ground that

without affording opportunity to the petitioner, the said order has been

passed.

3. Heard Mr.S.Sathish, learned counsel for the petitioner and

Mr.V.Ashok Kumar, learned Central Government Standing Counsel for the

respondents.

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4. By consent of both the parties, this writ petition is taken up for final

disposal at the time of admission itself.

5. It is also contended by the learned counsel for the petitioner that the

impugned order dated 17.12.2018 has been passed in violation of the

provisions of the Companies Act, 2013 and therefore the said order is bad in

law.

6. The issue raised in these writ petitions was considered by the

Hon'ble Division Bench of this Court by its order dated 09.10.2020 in W.A.

No.569 & Ors. of 2020 in the case of Meetgelaveetil Kaitheri

Muralidharan Versus Union of India & Another and in paragraphs 36

and 38, it has been held as follows :

36. 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.

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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.

38. 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

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into account the observations and conclusions herein. No costs. Consequently, connected miscellaneous petitions are closed.

7. The case on hand stands on the same footing. In the instant case,

also, no notice was given to the petitioner before disqualifying him as

Director of M/s.Mk.Infra Homes Pvt. Ltd.

8. For the foregoing reasons, the ratio laid down by the Hon'ble

Division Bench of this Court, dated 09.10.2020 in W.A. No.569 & batch

applies to the facts of the instant case also.

9. Accordingly, the impugned order dated 17.12.2018 passed by the

second respondent disqualifying the petitioner as Director of M/s.Mk.Infra

Homes Pvt. Ltd., under Section 164(2) (a) of the Companies Act, 2013 is

hereby set aside in the terms indicated in the aforesaid judgment and this