Madras High Court
V.Nedumaran vs Union Of India on 7 January, 2021
W.P.Nos.100,107 & 109 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.01.2021
CORAM:
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
W.P.Nos.100,107 & 109 of 2021
and W.M.P.Nos.148, 150, 158, 160, 161 & 162 of 2021
V.Nedumaran ... Petitioner in W.P.No.100 of 2021
Kandasamy ... Petitioner in W.P.No.107 of 2021
Anitha Vijayakumar ... Petitioner in W.P.No.109 of 2021
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, Chennai,
Block No.6, B Wing 2nd Floor,
Shastri Bhawan 26,
Haddows Road,
Chennai – 600 006. ... Respondents in all 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 order dated
18.12.2018 uploaded in the website of the 1st respondent in so far as the
petitioners vide DIN 02024959, 02154406 & 07081701 herein are concerned,
quash the same as illegal, arbitrary and devoid of merit and consequentially
direct the respondents herein to permit petitioners to get reappointed as
Directors of any Companies or appointed as Directors in any companies
without any hindrance.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.100,107 & 109 of 2021
For Petitioner in all WPs : Mr.S.Karunamoorthy
For Respondents in all WPs : Ms.Anuradha
ACGSC
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 18.12.2018 passed by the second
respondent on the ground that without affording opportunity to the petitioners,
the said order has been passed.
2.Ms.Anuradha, learned ACGSC 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.S.Karunamoorthy, learned counsel for the petitioners and
Ms.Anuradha, learned ACGSC 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.
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W.P.Nos.100,107 & 109 of 2021
5.The issue raised in this writ petition 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. 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
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W.P.Nos.100,107 & 109 of 2021
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 into account the observations and conclusions herein.
No costs. Consequently, connected miscellaneous petitions are
closed.
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
https://www.mhc.tn.gov.in/judis/
W.P.Nos.100,107 & 109 of 2021
M/s.Gambion Electronics (Madras) Private Limited and M/s. ANM
Constructions Private Limited respectively.
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 18.12.2018 passed by
the second respondent disqualifying the petitioners as Directors of
M/s.Gambion Electronics (Madras) Private Limited and M/s. ANM
Constructions Private Limited respectively 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.
07.01.2021
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
pam/nl
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.
To
https://www.mhc.tn.gov.in/judis/
W.P.Nos.100,107 & 109 of 2021
1.Union of India,
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 26,
Haddows Road,
Chennai – 600 006.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.100,107 & 109 of 2021
ABDUL QUDDHOSE, J.
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W.P.Nos.100,107 & 109 of 2021
07.01.2021
https://www.mhc.tn.gov.in/judis/
