TaxTMI 
TaxTMI 
2019 (10) TMI 377
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....not having been presented by the person competent to do so. Elaborating on the same, learned counsel contended that the execution application was filed on 03.03.2016 on the basis of resolution of same date passed by the Board of Directors of M/s Harbans Singh Tuli and Sons Builders Pvt. Ltd, Chandigarh whereas the same had been dissolved on 16.06.2007 and its assets and liabilities had been taken over by M/s H.S. Tuli and Sons Builders Pvt. Ltd but even the same was dissolved on 30.06.2017, thereafter, the execution application could not have been filed on the basis of resolution of M/s Harbans Singh Tuli and Sons Builders Pvt Ltd and in any case even if the institution of the execution application on the basis of resolution dated 03.03.2016 was held to be valid, the execution proceedings could not have been continued without getting M/s H.S. Tuli and Sons Builders Pvt. Ltd revived. 3. Learned counsel for the petitioner further contended that the execution application was also not maintainable on account of having been filed by a person not competent to do so as neither the Directors constituting the Board of Directors of M/s H.S. Tuli and Sons, Builders Pvt Ltd nor Shri Harkrish....
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.... interest @ 12 % on the principal amount w.e.f. 01.04.1980 till date of payment whereas the Executing Court had arrived at the figure of Rs. 30,54,570.7/- by adding interest @ 12 % p.a. on the awarded amount from 01.04.1980 till date of decree and thereafter by calculating interest @ 12 % p.a. on the amount so arrived at by clubbing the awarded amount and interest as on date of decree, till date of payment. 6. Per contra, Shri Tuli, appearing-in-person on behalf of the respondent/decree-holder contended that he was duly authorized to present and prosecute the execution application dated 03.03.2016 not only in terms of the resolution of the company M/s H.S. Tuli & Sons Builders Pvt. Ltd., but also in terms of Clause 31 of the Memorandum and Articles of Association of the company being its Managing Director notwithstanding that the company i.e. M/s H.S. Tuli and Sons Builders Pvt. Ltd had been dissolved on 30.06.2017 as in view of the provisions of Section 250 of the Act, the right of a company to recover the amount owed to it subsists even after dissolution. It needs to mention here that Sh. Tuli had on February 01,2019, produced the original resolution book of M/s H.S. Tuli and S....
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....d 04.10.2006 passed by the learned Civil Judge Jr. Divn., Chandigarh whereby the awarded amount along with interest @ 12 % p.a. w.e.f. 01.04.1980 till date of decree was made principal / decretal amount with aforesaid amount to carry interest @ 12 % p.a. w.e.f. date of decree till date of payment. He submitted that identical plea of Union of India as now raised with regard to calculations had been rejected by the learned Civil Judge (Jr. Division), Chandigarh vide order dated 04.10.2006 by holding as under:- "Therefore, this Court is of the opinion that the awarded amount as upheld by the Court on 1.10.2003 along with the interest at the rate of 12% per annum simple with effect from 4.10.1980 till 19.2.2001 will become principal/decretal amount and on the said amount an interest at the rate of 12% per annum simple is to be paid by the JD to the decree holder till 01.10.2003 and thereafter, at the rate of 9% per annum simple till the payment in full and final and the amount to be paid by the JD's is first to be adjusted towards the interest and then towards the principal. Sh. Tuli contended that order dated 04.10.2006 was not challenged by the petitioner and had thus attained f....
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....ed by the parties before the learned Additional District Judge, Chandigarh by filing separate appeals which were dismissed vide judgment and decree dated 07.03.2008. Thereafter, the respondent/decree-holder filed Civil Revision No. 5770 of 2008 before this Court which was disposed of vide order dated 25.02.2016 by restoring the award passed by the Arbitrator with reference to Claim No.2(K) and 2(M) while confirming the rejection of Claim No.2(L) besides holding the respondent/decree-holder entitled to interest @ 9% instead of 12% per annum from the date of decree till realisation. 14. Both parties filed SLPs against the aforementioned decision of this Court in CR No.5770 of 2008. Vide order dated 14.08.2017 SLP No.28616 of 2016 filed by the Union of India was dismissed while Civil Appeal Nos.10496- 97 of 2017 filed by the respondent/decree-holder was partly allowed, interest granted by the Arbitrator was restored and the respondent/decree-holder held entitled to interest @ 12% p.a. on the award as modified by this Court vide its order dated 25.02.2016 in CR No.5770 of 2008 with the amount to be paid within three months. 15. Since the payment was not made to the respondent/decre....
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....lification of Directors) Rules, 2014, it would be appropriate to refer hereunder to the relevant extract of the relevant applicable provisions. Section 266 A of the Companies Amendment Act, 2006 : "[266A. Application for allotment of Director Identification Number Every-- (a) individual, intending to be appointed as director of a company; or (b) director of a company appointed before the commencement of the Companies (Amendment) Act, 2006, shall make an application for allotment of Director Identification Number to the Central Government in such form, and manner (including electronic form) alongwith such fee, as may be prescribed: Provided that every director, appointed before the commencement of the Companies (Amendment) Act, 2006, shall make, within sixty days of the commencement of the said Act, such application to the Central Government: Provided further that every applicant, who has made an application under this section for allotment of a Director Identification Number, may be appointed as a director in a company, or, hold office as director in a company till such time such applicant has been allotted the Director Identification Number." Rule 2(1)(d....
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....f- (h) he has not complied with sub-section (3) of section 152." Thus, as per the provisions referred to above, a Director Identification Number is a requirement not only for a person to be appointed as Director but also for existing Director of a company i.e. even for a company which had been incorporated under the Companies Act, 1956. 20. Aforementioned aspect of the matter assumes significance in the context of Section 174 read with Section 167 of the Act. Although in terms of Section 174, the quorum for the meeting of the Board of Directors was complete while passing resolution dated 03.03.2016 yet the resolution passed in such meeting cannot be deemed to be a valid resolution in view of non possession of DIN by either of the Directors, as non possession of DIN would constitute a disqualifications under Section 164(1) (h), which lays down that a person not having been allotted a DIN under Section 154 cannot be appointed as a Director of a company and as per Section 167 the office of Director shall become vacant in case he incurs any of the disqualifications specified in Section 164. Section 167 of the Act is reproduced as under:- "167. Vacation of office of director.-....
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.... resolution in the eyes of law, therefore, any proceedings instituted by the company pursuant to such a Board resolution would be a nullity in the eyes of law. 23. It also needs noticing here that although the objections dated 21.10.2017 had raised a general objection to the competence of Sh Harkrishen Singh Tuli to file the execution application and did not explicitly contain a challenge to the maintainability of the execution application on account of non possession of DIN yet the fact remains that written submissions/arguments dated 23.03.2018 were filed by the petitioner before the learned Executing Court and the same were taken on record by the learned Executing Court vide order dated 18.08.2018. In paragraph No. 2 of the said written submissions/arguments filed on behalf of the petitioner/judgment debtor it has been mentioned that the same had been filed to fortify the oral submissions addressed at the time of arguments in furtherance of the objections filed. Once the aforementioned written submissions/arguments had been taken on record then it was incumbent upon the learned Executing Court to have decided the point raised therein. 24. In the circumstances, although proce....