Madras High Court
Sharma Kekanaje Vijaya vs Union Of India on 4 January, 2021
W.P.Nos.20171 and 20173 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2021
CORAM:
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
W.P.Nos.20171 and 20173 of 2020
and W.M.P.Nos.24915, 24917, 24918 & 24919 of 2020
Sharma Kekanaje Vijaya ... Petitioner in W.P.No.20171 of 2020
Kundurthy Prabhakar ... Petitioner in W.P.No.20173 of 2020
Vs.
1.Union of India,
Represented by its
Ministry of Corporate Affairs,
Shastri Bhawan, Dr.Rajendra Prasad Road,
New Delhi – 110 001.
2.Registrar of Companies,
Tamil Nadu, Coimbatore,
Block No.6, B Wing 2nd Floor,
Shasthri Bhavan,
26 Haddows Road,
Chennai – 600 006. ... Respondents in both WPs
COMMON PRAYER: Writ Petitions filed under Article 226 of the
Constitution of India, for issuance of a Writ of Certiorarified Mandamus to call
for the records of the 2nd respondent relating to the impugned orders dated
08.09.2017, read with updated list dated 01.11.2017 uploaded and hosted on
the website of the 1st respondent, in so far as the petitioners herein are
concerned, quash the status “Disqualified under Section 164(2)” against them
Director Identification Number (DIN Nos: 02657616 & 02657607) as illegal,
arbitrary and devoid of merit and consequentially direct the respondents herein
to permit the petitioners to get reappointed as Directors of any Company or
appointed as Directors in any companies without any hindrance.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.20171 and 20173 of 2020
For Petitioner in both WPs : Mr.Cibi Vishnu
For Respondents in both WPs : Mr.Pavesh Kannan
COMMON ORDER
These writ petitions have been filed challenging the disqualification of
the petitioners as Directors under Section 164(2)(a) of the Companies Act,
2013 on the ground that they have not submitted their financial statements or
annual returns for three financial years consecutively. The petitioners have
challenged the common impugned order dated 08.09.2017 passed by the second
respondent on the ground that without affording opportunity to the petitioners,
the said order has been passed.
2.Mr.Paresh Kannan, learned CGSC for the respondents accepts notice
on behalf of the respondents. By consent of both parties, these Writ Petitions
are taken up for final disposal at the admission stage itself.
3.Heard Mr.G.Baskar, learned counsel for the petitioners and Mr.Pavesh
Kannan, learned CGSC for the respondents.
4.It is also contended by the learned counsel for the petitioners that the
common impugned order has been passed in violation of the provisions of the
Companies Act, 2013 and therefore the said order is bad in law.
5.The issue raised in this writ petition was considered by the Hon'ble
https://www.mhc.tn.gov.in/judis/
W.P.Nos.20171 and 20173 of 2020
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. 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
https://www.mhc.tn.gov.in/judis/
W.P.Nos.20171 and 20173 of 2020
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 into account the observations and conclusions herein.
No costs. Consequently, connected miscellaneous petitions are
closed.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.20171 and 20173 of 2020
6.The case on hand stands on the same footing. In the instant case, also,
no notice was given to the petitioners before disqualifying them as Directors of
M/s.Caretel Networks Private Limited.
7.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.
8.Accordingly, the common impugned order dated 08.09.2017 passed by
the second respondent disqualifying the petitioners as Directors of M/s.Caretel
Networks Private Limited under Section 164(2)(a) of the Companies Act, 2013
is hereby set aside in the terms indicated in the aforesaid judgment and these
writ petitions are allowed. No costs. Consequently, connected miscellaneous
petitions are closed.
04.01.2021
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
pam/vsi-2
Note:In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.20171 and 20173 of 2020
ABDUL QUDDHOSE, J.
pam/vsi-2
To
1.The Secretary,
Ministry of Corporate Affairs,
Shastri Bhawan,
Dr.Rajendra Prasad Road,
New Delhi – 110 001.
2.Registrar of Companies,
Tamil Nadu, Coimbatore,
No.7, AGT Business Park,
I Floor, Phase II,
Avinashi Road, Civil Aerodrome Post,
Coimbatore – 641 014.
W.P.Nos.20171 and 20173 of 2020
04.01.2021
https://www.mhc.tn.gov.in/judis/
