The High Court allowed the writ petition and set aside the impugned order disqualifying the petitioner as a Director under Section 164(2)(a) of the Companies Act, 2013, holding that no notice was affords to the petitioner before the disqualification.
The impugned order dated 01.11.2017 passing the petitioner's disqualification as Director is set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.02.2021
CORAM:
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
W.P.No.34032 of 2018
and W.M.P.No.39527 of 2018
Dhinesh Kumar ... Petitioner
Vs.
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,
Block No.6, B Wing 2nd Floor,
Shastri Bhawan 26, Haddows Road,
Chennai - 600 006. ... Respondents
PRAYER: Writ Petition 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 01.11.2017 uploaded in the website of the 1st respondent in so far as the petitioner herein is concerned with (DIN) Director Identification Number :02810208, under section 164(2)(a) of the Companies Act, and quash the same as illegal, arbitrary, illegal and devoid of merit and may direct the respondents to activate the Director Identification Number and Digital Signature of the petitioner or get appointed or re-appointed as director of any company without any hindrance.
For Petitioner : Ms.P.Stella Mary For Respondents : Ms.K.B.Arul, CGSC O R D E R
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 his financial statements or annual returns for three financial years consecutively. The petitioner has
challenged the impugned order dated 01.11.2017 passed by the second respondent on the ground that without affording opportunity to the petitioner, the said order has been passed.
2.Mr.K.B.Arul, learned Central Government Standing Counsel for the respondents accepts notice on behalf of the respondents.
3.Heard Ms.P.Stella Mary, learned counsel for the petitioner and Mr.K.B.Arul, learned Central Government Standing Counsel for the respondents.
4.It is also contended by the learned counsel for the petitioner that the 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 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 :
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.
6.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 a Director of M/s.I Pack Software 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 impugned order dated 01.11.2017 passed by the second respondent disqualifying the petitioner as a Director of M/s.I Pack Software 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 the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
Sd/-
Assistant Registrar
//True Copy//
Sub Assistant Registrar
pam
To
1.The Secretary,
Union of India,
Ministry of Corporate Affairs,
Shastri Bhawan, Dr.Rajendra Prasad Road,
New Delhi - 110 001.
2. The Registrar of Companies,
Block No.6, B Wing 2nd Floor,
Shastri Bhawan 26, Haddows Road,
Chennai - 600 006.
+1 cc to M/s.P.Stella mary, Advocate Sr.No. 766
W.P.No.34032 of 2018
NMI(CO)
RMP(19/03/2021)
2 issues framed by the court
Whether the disqualification of the petitioner as a Director under Section 164(2)(a) of the Companies Act, 2013 without prior notice is illegal.
Whether the writ petition challenging the disqualification order is maintainable in view of the precedents laid down by the Division Bench.
Colour shows how this judgement treated each authority
Meetgelaveetil Kaitheri Muralidharan Versus Union of India & Another, W.A. No.569 & Ors. of 2020, dated 09.10.2020Referred¶16
2 provisions across 2 enactments
Dhinesh Kumar
Union of India, Represented by its Secretary, Ministry of Corporate Affairs
Registrar of Companies
Abdul Qudhose
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
