TaxTMI 
TaxTMI 
2020 (4) TMI 354
X X X X Extracts X X X X
X X X X Extracts X X X X
....andey, Ishan Deo Giri, Manvendra Narain Pathak, Ujjawal Satsangi, Jagriti Singh, Dhananjay Kumar Mishra, Shubham Agarwal, Ankur Agarwal, Suyash Agarwal, Ravinath Tiwari, Nishant Mehrotra, Mahendra Kumar Maurya, Anurag Vajpeyi, Shivendra Bahadur, Rohit Nandan Pandey, Mehul Khare, Dharmendra Kumar Gupta, Kiran Gupta, Srijan Mehrotra, Anuj Kumar, Rahul Jain, Anurup Dutta, Urvashi Jain, Abhay Kumar Singh, Manu Ghildyal, Dinesh Kumar Rai, Ravinath Tiwari, Abhinav Gaur, Abhishek Kumar Srivastava, Virendra Kumar, Rohit Nandan Pandey, Lal Mani Tripathi, Arnab Banerji, Vivek Ratan Agrawal, Mohd Nasir, Bindu Kumari, Mohd Nasir, Amit Verma Counsel for Respondent :- Sanjay Kumar Yadav, Prashant Singh Som, Sanjay Kumar Yadav, Neeru, A.S.G.I., Narendra Singh, Gyan Prakash, Sanjay Kumar Om, Ravi Prakash Srivastava, Om Prakash Gupta, Purnendu Kumar Singh, Rajesh Tripathi, Manoj Kumar Singh, Avijit Saxena, Manu Vardhana, Krishna Agarawal, Manu Vardhana, Narendra Kumar Chatterjee, Arvind Kumar Goswami, Ram Dular, Vinay Kumar Singh, Annapurna Singh, Manjari Singh, Harshita Rani, Brijesh Kumar, Kunal Ravi Singh, V.K. Singh, Sabhajeet Singh, Kuldeep Singh Chauhan, Sabhajeet Singh, C.S.C., Krishna Ji....
X X X X Extracts X X X X
X X X X Extracts X X X X
....18 of 2019, 26529 of 2019, 26775 of 2019, 28569 of 2019, 33232 of 2019, 33354 of 2019, 33355 of 2019, 33595 of 2019, 35065 of 2019, 24942 of 2019, 25079 of 2019, 25120 of 2019, 25321 of 2019, 25336 of 2019, 25462 of 2019, 25646 of 2019, 25801 of 2019, 25938 of 2019, 26021 of 2019, 26042 of 2019, 26059 of 2019, 26060 of 2019, 26104 of 2019, 27609 of 2019, 27613 of 2019, 28634 of 2019, 28809 of 2019, 28829 of 2019, 29297 of 2019, 29986 of 2019, 30053 of 2019, 30578 of 2019, 30842 of 2019, 31091 of 2019, 31124 of 2019, 31177 of 2019, 31651 of 2019, 31689 of 2019, 31698 of 2019, 31725 of 2019, 31845 of 2019, 31923 of 2019, 31967 of 2019, 32004 of 2019, 32330 of 2019, 32569 of 2019, 32645 of 2019, 33707 of 2019, 34283 of 2019, 34563 of 2019, 34582 of 2019, 35479 of 2019, 35681 of 2019, 35792 of 2019, 36608 of 2019, 38175 of 2019, 19282 of 2019 Jai Shankar Agrahari, Gurnam Singh And Another, Niraj Agrawal And Another, Isha Sachdeva, Avinash Singh And Another, Kuldeep Singh, Surender Kumar, Ranvijay Singh, Rashid Khan, Manjeet Singh, Sameer Munshi, Arvind Kumar Dwivedi, Omar Mukhtar Husain, Krishna Chandra Gupta And Another, Sangita Verma, Atul Singh Kumar, Rajesh Ahuja And Another, Ru....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Pushpendra Kumar Awasthi, Krishna Kumar Bhardwaj Versus Union Of India, Registrar Of Companies ORDER Delivered by Hon'ble Sudhir Agarwal, J 1. In all these writ petitions, petitioners were Directors of various Companies and have been declared disqualified to continue as Directors of all the Companies in which they were Directors, under Section 164 (2) of Companies Act, 2013 (hereinafter referred to as "Act, 2013"), for a period of five years. Petitioners, therefore, have challenged declaration made by Registrar of Companies, U. P, Kanpur (hereinafter referred to as "ROC") publishing notice of such disqualification of petitioners specifying the period of five years and in most cases it is from 01.11.2016 to 31.10.2021 while in some cases period of five years varies but total period of disqualification is five years. Petitioners have prayed for quashing of aforesaid declaration made by ROC. They have also sought a mandamus directing respondents to reactivate petitioners' Director Identification Number (hereinafter referred to as 'DIN') and restore their names on the Roll of Directors. 2. The issues raised in all these writ petitions are common and facts a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....etitioner was "Director" though those Companies are/ were not in default. Before disqualifying petitioner as "Director" under Section 164 (2) of Act, 2013, no show cause notice or opportunity has been given, facts have not been verified and in a mechanical manner, petitioner's status has been shown as a "disqualified Director" and his DIN No.03266735 has been made inactive and/ or suspended. Section 164 (2) (a), which not only disqualifies a "Director" in respect of Defaulting Companies but extends the same to other Companies which have not committed default, as such it is irrational and unreasonable. It is in violation of fundamental right of petitioner under Article 19 (1) (g) of the Constitution therefore, Section 164 (2) (a) of Act, 2013 is arbitrary and ultra vires of the Constitution. It has no nexus with the objective sought to be achieved and has the effect of penalizing management of the Companies which are active, having not committed any default rendering their functioning difficult by disqualifying "Director" of those Companies only on the ground that those Directors are also holding similar Office in other Companies which have committed default attracting disqualif....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ort counter affidavit has been filed which is sworn by Sri Sudhir Kapoor, Registrar of Companies. It is said that Act, 2013 lays down a stricter regime for defaulting companies with higher additional fees; Quantum of punishment has been enhanced; provision for enhanced fine in case of repeated default has been included vide Section 451; Section 164(2) provides for disqualification of Directors in case the Company has failed to file Financial Statement or Annual Return for continuous period of three years "has been made and is extended to all Companies"; Vide General Circular No.34 of 2014 an opportunity was provided to defaulting companies to make their default good by filing belated documents on payment of certain fee and thereby avoiding prosecution etc; another scheme was launched by respondents, namely, "Condonation of Delay Scheme, 2018" commencing from 01.01.2018; in the present case ROC, Kanpur has acted under Section 164(2) and Section 167 of Act, 2013; it is the duty of "Directors" to ensure compliance of statutory requirements in respect of companies in which they are Directors; Petitioner has failed to ensure it; there is no retrospectivity given to Sections 164 or 167; ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....SSY Builders Pvt Ltd Private 15.01.2011 Active 3. Agarwal Infratowers Pvt Ltd Private 14.10.2012 Active 4. Best and Bright Property Pvt Ltd Private 12.05.2011 Active 5. Peerless Properties Pvt Ltd Private 23.05.2011 Active 6. Blue Strawberry Business Solutions Pvt Ltd Private 16.05.2013 Active 7. Agranate Leisure Pvt Ltd Private 08.02.2013 Active 8. Agranate Infra Limited Private 06.03.2013 Active 9. Prasantush Buildwell Pvt Ltd Private 04.06.2013 Active 10. Newriver Buildwell Pvt Ltd Private 23.01.2014 Active 11. Singh Infrazone Pvt Ltd Private 23.03.2015 Active Petitioner-2. Jaspal Singh DIN-2128430 1. Newwaves India Estate Management Services Private Limited Private 27.05.2008 Struck off 2. Writ Petition No.34503 of 2018 Petitioner-1. Dr. Niraj Agrawal DIN-00501880 1. Sairam Infraventures Private Limited Private 23.03.2012 Struck off 2. Vatsalya Heart Centre Private Private 14.06.2012 Active 3. Vatsalya Institute of Medical Sciences Private 22.12.2014 Active ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ner- Surender Kumar DIN-02362899 1. Shivarita Developers Private Limited Private 22.04.2010 Struck off 2. JSK Multitrade India Ltd Public - Active 3. Aarav Infrastructure Pvt Ltd Private - Active 4. Hi-Rel Info Genesis Pvt Ltd Private - Active 7. Writ Petition No.2469 of 2019 Petitioner-Ranvijay Singh DIN-05197675 1. Veera Infrahome Private Limited Private 06.12.2012 Struck off 2. One Place Infrastructures Pvt Ltd Private 01.01.2013 Active 3. O. P. Investorwala Services Pvt Ltd Private 24.06.2013 Active 4. One Place World Construction Pvt Ltd Private 06.06.2013 Active 5. One Place Automobiles Pvt Ltd Private 01.01.2014 Active 6. One place Global Trade Solutions Pvt Ltd Private 23.07.2015 Active 7. One Place India Sales Pvt Ltd Private 28.10.2015 Active 8. One Place Motion Pictures Pvt Ltd Private 19.12.2016 Active 9. 1981 One Place Imperial Education Forum - 14.03.2017 Active 10. One Place Brewries & Distillers Pvt Ltd Private 09.01.2018 Active 11. One Pl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....angita Verma DIN-06465016 1. Ankit Infraventures Private Limited Private 08.01.2013 Struck off 2. Kapeeshwar Electronics Pvt Ltd Private 08.09.2017 Active 3. Kapeeshwar Food Products Pvt Ltd Private 11.09.2017 Active 15.Writ Petition No.12824 of 2019 Petitioner- Atul Singh Kumar DIN-00963972 1. GCC Energy Private Limited Private 28.06.2010 Struck off 2. Venus Sugar Ltd Public 26.09.2017 Active 3. Vishwakarma Holdings Ltd Public 17.09.2004 Active 4. Dublin Estates Pvt Ltd Private 30.03.2013 Active 5. Futuristic Viniyog Ltd Private 30.03.2013 Active 6. Roli Holdings Pvt Ltd Trans. From West Bengal Private 30.03.2013 Active 7. Dynamic Commercial Ltd Public 30.03.2013 Active 8. Devon Viniyog Pvt Ltd Private 15.09.2004 Active 9. M.P. Singh Memorial Healthcare Pvt Ltd Private 30.11.2007 Active 10. M. P. Singh Project Pvt Ltd Private 30.03.2013 Active 11. Venus Cements Ltd Public 30.03.2011 Active 12. Avi-Aru Infrastructure Pvt Ltd Private 30.03.2013 Activ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....let Private Limited Private 22.10.2012 Struck off 2. Vision and Viability Reality Solutions Private 20.08.2014 Active 21. Writ Petition No.14557 of 2019 1. Vishnu Sharma DIN-03392941 2. Uday Kumar DIN-03393074 3.Gaurav Bhatnagar DIN-03397944 1. Askus Advisors Pvt Ltd Private 28.01.2011 Struck off 2. Pacificgreen Infraheight Pvt Ltd Private 18.07.2013 Active 22.Writ Petition No.15854 of 2019 Petitioner- Ashish Tripathi DIN-0516563 1. Bhoomishakti Real Istate Consulting Private 20.03.2013 Struck off Services Pvt Ltd 2. Ashtabhoomi Developwell Pvt Ltd Private 04.12.2012 Active 3. Bhoomi Ventures Pvt Ltd Private 17.02.2012 Active 23. Writ Petition No.16359 of 2019 Petitioner- Alok Singh DIN-03222931 1. Adpa Builders Pvt Ltd Private 14.09.2010 Struck off 2. Lucknow Royal Infradevelopers Pvt Ltd Private 16.05.2011 Active 3. One Roof Infra Developers Pvt Ltd Private 17.11.2014 Active 24. Writ Petition No.17328 of 2019 Petitioner-Syeed Khan DIN-03335406....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d Pvt Ltd Private - Active 11. Panchsheel Infrapromoters Pvt Ltd Private - Active 12. Vibgyor Facility Management Pvt Ltd Private - Active 30. Writ Petition No.17557 of 2019 Petitioner-1 Anil Kumar Gupta DIN-02728040 1. Kela Devi Knowledge Park Ltd Public 13.01.2012 Active Petitioner-2 Arvind Kumar Gupta DIN-02912070 1. Kela Devi Knowledge Park Ltd Public 13.01.2012 Active 2. Marigold Paints Pvt Ltd Private 02.04.1987 Active 3. Aroma Dwelling Pvt Ltd Private 30.09.2009 Active 4. Killick Shipping Services Ltd Public 13.07.1987 Active 5. Marathon Trading and Investment Pvt Ltd Private 14.07.1988 Struck off Petitioner-3 Seema Mishra DIN-03428815 1. Kela Devi Knowledge Park Ltd Public 13.01.2012 Active 2. Swarnima Oil Industries Ltd Public 07.11.1991 Active 3. Vistar Vinimay Infra Trading Pvt Ltd Private 18.07.2014 Active 31. Writ Petition No.17610 of 2019 Petitioner-Suresh Kumar Sahu DIN-06653284 1. S.S.Agrogenetics and Fertilizers Pvt Ltd Private 04.03.2014 Active 3....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lin Infrahousing Pvt Ltd Private 28.08.2012 Struck off 2. Walkwater Constructions Pvt Ltd Private 28.08.2012 Struck off 3. SFS Infra Housing Projects Pvt Ltd Private 25.02.2016 Active 37. Writ Petition No.17834 of 2019 Petitioner-Sumitra DIN-06652272 1. Indrashakti Human Resource Services Pvt Ltd Private 17.09.2010 Active 2. Dotnet Sales and Marketing Pvt Ltd Private 06.12.2010 Struck off 38. Writ Petition No.17843 of 2019 Petitioner-Ankur Mittal DIN- 01988340 1. Trimurti V Fahionz Private Ltd Private 16.11.2012 Struck off 2. OTR Papers Pvt Ltd Private 27.09.1995 Active 3. S.R. Mittal paper Mills Ltd Publie 03.08.1995 Active 39. Writ Petition No.17912 of 2019 Petitioner-Gopal Das Agarwal DIN-01148301 1. Ramesth Diamonds Pvt Ltd Private 22.05.2006 Active 2. G.P. Colonisers and Developers Pvt Ltd Private 04.07.2006 Struck off 3. Mukut Infrastructures Pvt Ltd Private 26.07.2006 Active 4. Gateway Ventures Pvt Ltd Private 28.12.2011 Active 5. Walkwater Constructions Pvt Ltd Privat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Jupiter Tradelinks Pvt Ltd Private 22.08.2008 Struck off 7. Kaishori Marketing Pvt Ltd Private 18.05.2010 Active 8. Nandini Ventures Pvt Ltd Private 12.01.2012 Active 9. Primeland Properties and Infrastructure Pvt Ltd Private 09.04.2012 Active 11. Carols Infratech Pvt Ltd Private 11.07.2012 Struck off 12. Equator Civiltech Pvt Ltd Private 28.08.2012 Active 14. Granite Ventures Pvt Ltd Private 27.03.2012 Struck off 15. Gurushikhar Infrahousing Pvt Ltd Private 10.07.2012 Active 16. Koteshwar Infrastructure Pvt Ltd Private 29.06.2012 Active 18. Piano Constructions Pvt Ltd Private 28.08.2012 Active 19. Picasso Infracraft Pvt Ltd Private 28.08.2012 Active 20. Ramesth Diamonds Pvt Ltd Private 22.05.2006 Active 21. Rosebud Dwelling Pvt Ltd Private 29.06.2012 Active 22. Blue Nile Infratech Pvt Ltd Private 09.04.2012 Active Petitioner-2 Shashi Agarwal DIN-02526396 1. Carmel Ventures Pvt Ltd Private 29.02.2012 Active 2. Mukut Infrastructures Pvt Ltd Private 2....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Ltd Private 04.10.2011 Struck off 2. Hatchcrate Pvt Ltd Private 21.05.2018 Active Petitioner-3 Arshad Ali Khan DIN-02911315 1. United Infraplanners Pvt Ltd Private 04.10.2011 Struck off 2. Hatchcrate Pvt Ltd Private 21.05.2018 Active 45. Writ Petition No.19011 of 2019 Peititoner-Neeraj Verma DIN-07495092 1. G & G Technobuild Pvt Ltd Private 25.02.2013 Struck off 46. Writ Petition No.19020 of 2019 Petitioner-Anjani Kumar DIN-03230838 1. Rudra Buildzone Ltd Public 17.10.2012 Struck off 2. Lifelong Commercial Services Ltd Public 21.10.2010 Struck off 47. Writ Petition No.19227 of 2019 Petitioner-Nitin Sinha DIN-02694563 1. Petron International (India) Ltd Public 01.11.1989 Struck off 2. HBS Agro & Biotech Engineering Enterprises Pvt Ltd Private - Active 3. HBS Automobiles and Engineering Pvt Ltd Private - Active 4. DSB Consulance Pvt Ltd Private - Active 5. Transcend Nutressential International Ltd Private - Active 6. Healthnus International Marketing India Pvt Ltd Privat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Petition No.19285 of 2019 Petitioner-1 Abhinandan Kumar Jain DIN-00276247 1. Aakansha Portfolio Pvt Ltd Private 30.01.2004 Active 2. Shree Saurabh Sagar Builders and Developers Pvt Ltd Private 13.12.2004 Active 3. Shree Saurabh Infrastructure Development Private 27.05.2011 Active Petitioner-2 Nirupama Jain DIN-00276192 1. Shree Saurabh Sagar Builders and Developers Pvt Ltd Private 13.12.2004 Active 2. Shree Saurabh Infrastructure Development Private 27.05.2011 Active Petitioner-3 Vibha Jain DIN-02879685 1. Shree Saurabh Sagar Builders and Developers Pvt Ltd Private 13.12.2004 Active 2. Shree Saurabh Infrastructure Development Private 27.05.2011 Active 53.Writ Petition No.19297 of 2019 Petitioner-1 Kamal Chug DIN-00059460 1. Jak Remedies Pvt Ltd Private 23.05.2006 Active 2. Vidhyut Carbon Fertilizers Pvt Ltd Private 23.07.2014 Struck off Petitioner-2 Manoj Kumar Goel DIN-06888437 1. Vidhyut Carbon Fertilizers Pvt Ltd Private 23.07.2014 Struck off Petitioner-3 Nand Kishore Goel DIN-01685952 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Hans Pharmaceutical and Chemicals Pvt Ltd Private 01.07.1988 Active 60. Writ Petition No.20321 of 2019 Petitioner-Dr. Rajesh Mehta DIN-00246328 1. Kambrij Hospital Care Pvt Ltd Private 06.04.1999 Active 2. Kambrij Healthcare Consultants Pvt Ltd Private 07.12.2007 Active 3. Eco Friendly Textile Park Pvt Ltd Private 09.06.2008 Struck off 61. Writ Petition No.20434 of 2019 Petitioner-1 Vipin Agrawal DIN-02325959 1. Goldenera Plastopack Pvt Ltd Private 31.03.2014 Active 2. Goldenera Thermo Fibre Industries Pvt Ltd Private 07.01.2014 Struck off Petitioner-2 Shirish Agrawal DIN-06754584 1. Goldenera Plastopack Pvt Ltd Private 31.03.2014 Active 2. Goldenera Thermo Fibre Industries Pvt Ltd Private 07.01.2014 Struck off Petitioner-3 Anjani Kumar Rungta DIN-06501555 1. Goldenera Thermo Fibre Industries Pvt Ltd Private 07.01.2014 Struck off 2. Gorakhpur Greentech Properties Pvt Ltd Private 27.02.2013 Active 62. Writ Petition No.20450 of 2019 Petitioner-Syed Amir Haider Zaidi DIN-02656609 1. 3GGenersys In....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Manoj Kumar Agarwal DIN-03286778 1. Rajasthaan Grain Pulses Pvt Ltd Private 19.03.2012 Active 2. Khatu Shyamji Agro Exim Pvt Ltd Private 02.12.2011 Struck off 71. Writ Petition No.20992 of 2019 Petitioner-Shiv Kumar Sarda DIN-00894667 1. Volgina Finvest Pvt Ltd Private 05.05.1997 Active 72. Writ Petition No.21180 of 2019 Petitioner-Nitin Chaturvedi DIN-00943939 1. Secure Transmission System Pvt Ltd Private 16.06.2004 Active 73. Writ Petition No.21214 of 2019 Petitioner-Mahesh Chand Agarwal DIN-01949782 1. Shanti Padam Emporium Prvt Ltd Private 13.08.2004 Active 2. Omshri Ganesh Infracity Pvt Ltd Private 06.07.2011 Struck off 3. Shri Shanti Construction Pvt Ltd Private 05.05.2010 Active 74. Writ Petition No.21223 of 2019 Petitioner-Hana Khan DIN-02965140 1. True Media Indian Communication Ltd Public 01.06.2006 Active 2. Era's Medical Devices and Services Pvt Ltd Private 15.05.2013 Active 3. Era Shelters Ltd Public 21.06.2006 Struck off 4. New Ears India Shipping and Cargo Ltd Public ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....izers Promoters and Developers India Pvt Ltd Private 13.02.2006 Active 3. Juddi Maritime Pvt Ltd Private 18.08.2008 Active 4. WM Bluechip Investment Services Pvt Ltd Private 11.02.2009 Active 5. Admire Builder Pvt Ltd Private 19.05.2009 Active 6. Zircon Construction Pvt Ltd Private 19.05.2009 Active 7. Eras Lucknow Medical College and Hospital Pvt Ltd Private 30.05.2011 Active 8. Era Educational Services Pvt Ltd Private 28.05.2011 Active 9. Era Agri Products Pvt Ltd Private 23.08.2011 Active 10. Era Fishery Products Pvt Ltd Private 23.08.2011 Active 11. Era Health Care Pvt Ltd Private 04.01.2012 Active 12. H T Financial Services Pvt Ltd Private 06.01.2012 Active 13. True Media Indian Communication Ltd Public 21.11.2011 Active 14. Test Masters Pvt Ltd Private 30.09.2015 Active 77. Writ Petition No.21309 of 2019 Petitioner-1 Pushpa Chaturvedi DIN-05251518 Petitioner-2 Vaibhav Chaturvedi DIN-05251491 1. Prabha Motors Pvt Ltd Private 01.05.2012 Active 78. Writ P....
X X X X Extracts X X X X
X X X X Extracts X X X X
....04.2013 Struck off Petitioner-2 Sushma Verma DIN-01355075 1. Lebeyon Marketing Communications Pvt Ltd Private 11.04.2007 Active 2. Bindass Event Pvt Ltd Private 26.04.2013 Struck off 3. G. S. Exhibitions Pvt Ltd Private 05.10.2010 Active 88. Writ Petition No.22481 of 2019 Petitioner-Madan Pal Singh DIN-02453202 1. Virat Infrapower Pvt Ltd Private 05.02.2009 Struck off 2. Veg Edibles Pvt Ltd Private 17.07.2012 Struck off 3. Atlas Infrapromoters Pvt Ltd Private 05.05.2009 Active 89. Writ Petition No.22560 of 2019 Petitioner-1 Alok Kumar Singh DIN-03119132 Petitioner-2 Piyush Kumar Singh DIN-03152890 1. Pratap Diagnostic Pvt Ltd Private 16.09.2011 Active 90. Writ Petition No.22661 of 2019 Petitioner-Mohd Arif DIN-05138765 1. Banaras Bone and Proteins Pvt Ltd Private 14.10.2004 Active 91. Writ Petition No.22877 of 2019 Petitioner-Kunwar Ambar Singh DIN-06617046 1. Srijankashi Infra Pvt Ltd Private 15.07.2013 2. Fly Smart Housing Pvt Ltd Private - Struck off 92.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tioner-1 Karan Chand Jain DIN-00254315 Petitioner-2 Sohan Ram Panwar DIN-01129654 1. Ablaze Life Science Pvt Ltd Private 16.07.2013 Struck off 2. Haveli Tours and Travels Pvt Ltd Private 20.03.2003 Active 3. Vridhi Infradevelopers Ltd Public 19.06.2005 Active 101. Writ Petition No.24196 of 2019 Petitioner-Rakesh Kumar Verma DIN-06696013 1. Turtledoves International Pvt Ltd Private 23.12.2013 Struck off 2. Regania Creations Pvt Ltd (OPC) Private 12.12.2014 Active 102. Writ Petition No.24240 of 2019 Petitioner-Masood Alam DIN-02208043 1. Happy Living Products Services Pvt Ltd Private 12.01.2012 Struck off 2. Monarch Buildwell Pvt Ltd Private 27.12.2012 Active 3. Silvasa Infraventures Pvt Ltd Private 12.02.2015 Active 4. Silvasa Suncity Pvt Ltd Private 17.04.2015 Active 5. Silvasa Infracon Pvt Ltd Private 02.02.2015 Active 6. Lubnas Overseas Pvt Ltd Private 12.10.2015 Active 7. Astralsylwasa Township Pvt Ltd Private 23.02.2017 Active 103. Writ Petition No.24595 of 2019 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2. KV Shopgood Pvt Ltd Private - - 113. Writ Petition No.24942 of 2019 Petitioner-Sanjesh Yadav DIN-01873656 1. Etah Exports Pvt Ltd Private 26.05.1998 Struck off 2. Progressive Infra Developers Pvt Ltd Private 08.02.2011 Active 3. Kaiser Construction Engineers and Contractor Pvt Ltd Private 02.03.2015 Active 114. Writ Petition No.25079 of 2019 1. Shweta Dubey DIN-06756625 1. Avritti Retail Pvt Ltd Private 07.08.2013 Struck off 115. Writ Petition No.25120 of 2019 Petitioner-1 Laxmi Kant DIN-00674357 1. Swarna Cosmetics Company Pvt Ltd Private 13.10.2010 Struck off 2. Sai Swarna Seeds Company Pvt Ltd Private 29.02.2008 Struck off 3. Swarna Herbals Pvt Ltd Private 13.03.2007 Active Petitioner-2 Prerna Yadav DIN-03192463 1. Swarna Cosmetics Company Pvt Ltd Private 13.10.2010 Struck off 2. Swarna Herbals Pvt Ltd Private 13.03.2007 Active 116. Writ Petition No.25321 of 2019 Petitioner-Kshitij Arora DIN-05285130 1. KRK Buildcon Pvt Ltd Private 25.05.2012 Struck off 2. Laj....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Hasan Leather Pvt Ltd Private 03.01.2006 Struck off 5. Cosmos Eco Engineering Pvt Ltd Private 15.03.2014 Struck off 6. Singhal Electrical Control Pvt Ltd Private 12.08.1996 Active Petitioner-2 Nazma Begum DIN-00284911 1. Delta Garments Pvt Ltd Private 27.08.2004 Active 2. Runa Fashions Pvt Ltd Private 19.05.2011 Struck off 3. Cosmos Eco Engineering Pvt Ltd Private 15.03.2014 Struck off 4. Singhal Electrical Control Pvt Ltd Private 12.08.1996 Active Petitioner-3 Shekhar Singhal Dharampal DIN-01866504 1. Singhal Electrical Control Pvt Ltd Private 12.08.1996 Active Petitioner-4 Pravina Kumar DIN-06997399 1. Singhal Electrical Control Pvt Ltd Private 12.08.1996 Active 124. Writ Petition No.26059 of 2019 Petitioner-1 Jitendra Kumar DIN-05271309 Petitioner-2 Nutan Rani DIN-07454896 1. Bran Eduvision Pvt Ltd Private 22.05.2012 Struck off 125. Writ Petition No.26060 of 2019 Petitioner-1 Sanjiv Kumar DIN-03481998 Petitioner-2 Ujjawal Kumar DIN-03481276 1. Crystal Learning Solutions Pvt Ltd ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....33 1. Power Fabricators (India) Pvt Ltd Private 13.01.2006 Active 131. Writ Petition No.28829 of 2019 Petitioner-Ashok Kumar Yadav DIN-02640237 1. Maa Vindhyavasini Infrabuild Pvt Ltd Private 26.04.2012 Struck off 2. Amisha Polymers Pvt Ltd Private 21.05.2009 Active 132. Writ Petition No.29297 of 2019 Petitioner-1 Sanjiv Gupta DIN-00546539 1. Bankey Bihari Infratech Pvt Ltd Private 10.09.2010 Active 2. Radhey Shyam Infraproject Pvt Ltd Private 04.05.2011 Struck off Petitioner-2 Deepak Gupta DIN-00555302 1. Bankey Bihari Infratech Pvt Ltd Private 10.09.2010 Active 2. Radhey Shyam Infraproject Pvt Ltd Private 04.05.2011 Struck off 3. Paarola Developers Pvt Ltd Private 21.12.2009 Active 133. Writ Petition No.29986 of 2019 Petitioner-1 Kshitij Singh DIN-0654482 Petitioner-2 Rekha Singh DIN-06544833 1. Nanvag Informatics and Consultancy Services Pvt Ltd Private 29.04.2013 Struck off 2. Nanvag Infra and Hospitality Ventures Pvt Ltd Private 12.04.2013 Active 134. Writ Petition No.30053 of 2019 Pet....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 13.06.2006 Active 2. R. B. Infraheight Pvt Ltd Private 14.05.2012 Active 3. R. R. Buildhome Pvt Ltd Private 13.02.2013 Struck off 141. Writ Petition No.31689 of 2019 Petitioner-Manoj Jitendra Singh DIN-06567263 1. Tetra Infratech Pvt Ltd Private 18.06.2013 Struck off 2. Triveni Constructive Solutions Pvt Ltd Private 24.02.2016 Active 142. Writ Petition No.31698 of 2019 Petitioner-1 Praveen Sharma DIN-00877710 Petitioner-2 Sunita Sharma DIN-00877851 1. Prasunco Pharmaceuticals Pvt Ltd Private 30.01.2012 Struck off 143. Writ Petition No.31725 of 2019 Petitioner-1 Munni Devi Jaiswal DIN-02846625 Petitioner-2 Prem Chandra Jaiswal DIN-02039726 1. Speed Rollers Pvt Ltd Private 19.10.1994 Struck off Petitioner-2 Prem Chandra Jaiswal DIN-02039726 1. Hari Om Steel Pvt Ltd Private 12.07.1995 Active 2. Shakumbhari Alloys Steel Pvt Ltd Private 17.12.1999 Active 144. Writ Petition No.31845 of 2019 Petitioner-Naveen Tripathi DIN-03326958 1. Tristar Infotech Pvt Ltd Private 03.09.2010 Struck off 2. Pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d Private 27.03.2009 Under Process of striking off 2. Aries Telemedia Ventures Pvt Ltd Private 26.08.2013 Struck off 3. Aries Marketers Pvt Ltd Private 08.06.1995 Active 4. Divyam Liquors LLP - 28.03.2019 Active 155. Writ Petition No.35479 of 2019 Petitioner-Madhu Garg DIN-0026840 1. Arg Pipes Pvt Ltd Private 22.04.2013 Struck off 156. Writ Petition No.35681 of 2019 Petitioner-Amit Goel DIN-06549720 1. Addressoptions Infra Pvt Ltd Private 17.05.2013 Struck off 157. Writ Petition No.35792 of 2019 Petitioner-1 Anil Kumar Verma DIN-06477675 Petitioner-2 Saroj Verma DIN-06477687 Petitioner-3 Ankush Verma DIN-06793482 1. Noble Care Hospital Pvt Ltd Private 31.01.2013 Active 158. Writ Petition No.36608 of 2019 Petitioner-1 Chandra Bhushan Pandey DIN-05220438 Petitioner-2 Neelam DIN-05225961 1. RJT Mass Communication Pvt Ltd Private 19.07.2018 Active 2. RGC Institutional (India) Pvt Ltd Private 23.03.2012 Struck off 159. Writ Petition No.38175 of 2019 Petitioner-1 Pushpendra Kumar Awas....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Kashmir), or any part thereof, before the extension thereto of the Indian Companies Act, 1913 (7 of 1913); or (2) in the State of Jammu and Kashmir, or any part thereof, before the commencement of the Jammu and Kashmir (Extension of Laws) Act, 1956 (62 of 1956), in so far as banking, insurance and financial corporations are concerned, and before the commencement of the Central Laws (Extension to Jammu and Kashmir) Act, 1968 (25 of 1968) in so far as other corporations are concerned; (g) the Portugese Commercial Code, in so far as it relates to "sociedades anonimas"; (iii) "private company" means a company which has a minimum paid-up capital of one lakh rupees or such higher paid-up capital as may be prescribed, and by its articles,-(a) restricts the right to transfer its shares, if any; (b) limits the number of its members to fifty not including - (i) persons who are in the employment of the company, and (ii) persons who, having been formerly in the employment of the company, were members of the company while in that employment and have continued to be members after the employment ceased; and (c) prohibits any invitati....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... allotment of Direction 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 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 Director Identification Number. 266B. Allotment of Director Identification Number.-The Central Government shall, within one month from the receipt of the application under section 266A, allot a Director Identification Number to an applicant,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rector or to any existing directors of a company, for the purpose of his identification as such." (emphasis added) 19. Section 274 of Act, 1956 dealt with disqualification of Directors. Earlier, disqualifications of 'Director' under Section 274 of Act, 1956 were described in Clause (a) to (f). Subsequently by Act 53 of 2000, Section 132 w.e.f. 13.12.2000 Clause (g) was inserted which included two more kinds of disqualifications. Section 274 as amended by Act 53 of 2000 w.e.f. 13.12.2000, read as under :- "274.Disqualification of directors.-(1) A person shall not be capable of being appointed director of a company, if - (a) he has been found to be of unsound mind by a Court of competent jurisdiction and the finding is in force; (b) he is an undischarged insolvent; (c) he has applied to be adjudicated as an insolvent and his application is pending; (d) he has been convicted by a Court of any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than six months, and a period of five years has not elapsed from the date of expiry of the sentence; (e) he has not paid any call in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ccounts and balance-sheet.-(1) At every annual general meeting of a company held in pursuance of section 166, the Board of directors of the company shall lay before the company- (a) a balance sheet as at the end of the period specified in subsection (3); and (b) a profit and loss account for that period. (2) In the case of a company not carrying on business for profit, an income and expenditure account shall be laid before the company at its annual general meeting instead of a profit and loss account, and all references to "profit and loss account", "profit" and "loss" in this section and elsewhere in this Act, shall be construed, in relation to such a company, as references respectively to the "income and expenditure account", "the excess of income over expenditure", and "the excess of expenditure over income". (3) The profit and loss account shall relate- (a) in the case of the first annual general meeting of the company, to the period beginning with the incorporation of the company and ending with a day which shall not precede the day of the meeting by more than nine months; and (b) in the case of any subsequent annual genera....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... dealt with certain disqualifications which render a person incapable of being appointed as Director of a Company. It nowhere provided that a person if already appointed Director, shall cease to be so, if incurs any or more disqualifications enumerated in Section 274 (1) of Act, 1956. 23. Section 275 proposed a restriction upon a person to be Director of more than a particular number of Companies. Earlier it provided that no person would be a Director of more than 20 Companies but vide Section 133 of Act, 53 of 2000 w.e.f. 13.12.2000, it was reduced to 15 Companies. A penalty was provided under Section 279 to a person who held Office of Director of more than maximum number of Companies as provided under Section 275. 24. Then comes Section 283 which dealt with vacation of Office by Directors. It read as under : "283. Vacation of office by directors.-(1) The office of a director shall become vacant if - (a) he fails to obtain within the time specified in sub-section (1) of section 270, or at any time thereafter ceases to hold, the share qualification, if any, required of him by the articles of the company; (b) he is found to be of unsound mind by a Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d (2), if a person functions as a director when he knows that the office of director held by him has become vacant on account of any of the disqualifications, specified in the several clauses of sub-section (1), he shall be punishable with fine which may extend to five thousand rupees for each day on which he so functions as a director. (3) A private company which is not a subsidiary of a public company may, by its articles, provide, that the office of director shall be vacated on any grounds in addition to those specified in sub-section (1)." (emphasis added) 25. Section 284 provided the manner in which Director of a Company may be removed. For the present purpose, Section 284 is not relevant, therefore, we are omitting to discuss the same. 26. The validity of Section 274 (1) (g), as amended by Companies Amendment Act, 2000 (hereinafter referred to as "Act, 2000") w.e.f. 13.12.2000, came to be considered before a Division Bench of Gujarat High Court in Saurashtra Cement Ltd. and Anr. vs Union Of India and Ors. (supra) and a Division Bench of Bombay High Court in Snowcem India Ltd. and Ors. vs Union Of India and Ors.(supra). Both Courts have upheld the same. We wo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ond proviso to sub-section (4) and subsection (5)], 141 to 160, sub-section (2) of 161, 164 to 168, 169 [except subsection (4)], 170 to 172, 173 to 175, 177 to 179, 184, 186 to 191, 193, 196 to 201, 203 to 205, 206 to 211, 212 [except references of sub-section (1) of Section 66, sub-section (5) of Section 140, Section 213, Sub-section (1) of section 251 and sub-section (3) of Section 339 made in sub-section (6) and also subsections (8) to (10)], 214 and 215, 216 [except sub-section (2)], 217, 219, 220, 223, 224 [except sub-section (2) and (5)], 225, 228 and 229, 366 to 369, 370 (except the proviso), 371, 374, 380, 381, 384, 385, Clause (a) of Section 386, 387 to 390, Sub-section (1) of Section 391, 392 and 393, 395, 396 to 398, 399 [except reference of word Tribunal in sub-section (2)], 400 to 404, 406, 442, 454 and 455, Schedule I to VI 4. 06.06.2014 06.06.2014 06.06.2014 Sub-sections (2) and (3) of Section 74 5. 13.01.2016 14.01.2016 13.01.2016 Sub-section (5) and (6) (except with respect to the manner of administration of the Investor Education and Protection Fund) and sub-section (7) of Section 125 6. 18.05.2016 18.05.2016 18.05.2016 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is evident from Section 1(4), which reads as under : "1(4) The provisions of this Act shall apply to- (a) companies incorporated under this Act or under any previous company law; (b) insurance companies, except insofar as the said provisions are inconsistent with the provisions of the Insurance Act, 1938 (4 of 1938) or the Insurance Regulatory and Development Authority Act, 1999 (41 of 1999); (c) banking companies, except insofar as the said provisions are inconsistent with the provisions of the Banking Regulation Act, 1949 (10 of 1949); (d) companies engaged in the generation or supply of electricity, except insofar as the said provisions are inconsistent with the provisions of the Electricity Act, 2003 (36 of 2003); (e) any other company governed by any special Act for the time being in force, except in so far as the said provisions are inconsistent with the provisions of such special Act; and (f) such body corporate, incorporated by any Act for the time being in force, as the Central Government may, by notification, specify in this behalf, subject to such exceptions, modifications or adaptation, as may be specified i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r appointment of director.-(1) A person shall not be eligible for appointment as a director of a company, if- (a) he is of unsound mind and stands so declared by a competent court; (b) he is an undischarged insolvent; (c) he has applied to be adjudicated as an insolvent and his application is pending; (d) he has been convicted by a court of any offence, whether involving moral turpitude or otherwise, and sentenced in respect thereof to imprisonment for not less than six months and a period of five years has not elapsed from the date of expiry of the sentence: Provided that if a person has been convicted of any offence and sentenced in respect thereof to imprisonment for a period of seven years or more, he shall not be eligible to be appointed as a director in any company; (e) an order disqualifying him for appointment as a director has been passed by a court or Tribunal and the order is in force; (f) he has not paid any calls in respect of any shares of the company held by him, whether alone or jointly with others, and six months have elapsed from the last day fixed for the payment of the call; (g) he has been convicted....
X X X X Extracts X X X X
X X X X Extracts X X X X
....very Company to file Annual Return with ROC within sixty days from the date on which Annual General Meeting (hereinafter referred to as 'AGM') is held or where no AGM is held in any year within sixty days from the date on which AGM should have been held together with the statement specifying the reasons for not holding the AGM. We find it appropriate to reproduce Sub-section (4) of Section 92 of Act, 2013 as under : "92(4). Every company shall file with the Registrar a copy of the annual return, within sixty days from the date on which the annual general meeting is held or where no annual general meeting is held in any year within sixty days from the date on which the annual general meeting should have been held together with the statement specifying the reasons for not holding the annual general meeting, with such fees or additional fess as may be prescribed." (emphasis added) 34. Earlier with regard to payment of fees or additional fees it was provided that it could have been paid within time as specified under Section 403 but it has been amended by Act 1 of 2018 w.e.f. 07.05.2018 and now Sub-section (4) says that payment of fees or additional fees shall be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ith the Registrar within thirty days of the date of annual general meeting in such manner, with such fees or additional fees as may be prescribed. Provided that where the financial statements under subsection (1) are not adopted at annual general meeting or adjourned annual general meeting, such unadopted financial statements along with the required documents under sub-section (1) shall be filed with the Registrar within thirty days of the date of annual general meeting and the Registrar shall take them in his records as provisional till the financial statements are filed with him after their adoption in the adjourned annual general meeting for that purpose: Provided further that financial statements adopted in the adjourned annual general meeting shall be filed with the Registrar within thirty days of the date of such adjourned annual general meeting with such fees or such additional fees as may be prescribed: Provided also that a One Person Company shall file a copy of the financial statements duly adopted by its member, along with all the documents which are required to be attached to such financial statements, within one hundred eighty days from the c....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... filed under Act, 2013 with ROC and for the purpose of present dispute we do not find it relevant, so skipping said provision. 39. However, aforesaid provisions make it clear that filing of Annual Returns and Financial Statements are obligatory, non-compliance thereof is punitive and penal is nature. Therefore, Legislature has found it expedient to include violation of said provisions as one of the disqualification of a person to be a Director of such Company. 40. Section 167 of Act, 2013 which came into force on 01.04.2014 provides for contingencies when office of director shall become vacant. Here also a proviso was inserted in clause (a) of sub-section 1 of Section 167 vide Section 54 (i) of Act 1 of 2018 w.e.f. 07.05.2018 and existing proviso after clause (f) of Section 167 was substituted by aforesaid amendment act. The amended Section 167, reads as under : "167. Vacation of office of director.-(1) The office of a director shall become vacant in case- (a) he incurs any of the disqualifications specified in Section 164: Provided that where he incurs disqualification under subsection (2) of Section 164, the office of the director shall become vac....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... directors who shall hold office till the directors are appointed by the company in the general meeting. (4) A private company may, by its articles, provide any other ground for the vacation of the office of a director in addition to those specified in sub-section (1)." (Provisions shown in bold were amended by Act 1 of 2018 w.e.f. 07.05.2018) 41. Before proceeding further we find it appropriate to refer one more provision i.e. Section 470 of Act, 2013 which has been enforced w.e.f. 12.09.2013. It provides that if any difficulty arises in giving effect to the provisions of Act, 2013, Central Government may, by order published in Official Gazette, make such provision, not inconsistent with the provisions of this Act, as appear to it to be necessary or expedient for removing difficulty. It also provides that no order under sub-section (1) of Section 470 shall be made after expiry of a period of five years from the date of commencement of Section 1 of Act, 2013. Section 470 of Act, 2013 is reproduced as under : "470. Power to remove difficulties.-(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order pu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....2014 will not be relevant, inasmuch as, disqualification under Section 164(2)(a) of Act, 2013 is failure of submission of Financial Statements or Annual Returns for any continuous period of three Financial Years and this provision, which is adverse and penal in nature, cannot be made applicable to a Financial Year which had already lapsed and when there was no such condition attracting any disqualification on an event as provided under Section 164(2) (a) of Act, 2013. 47. In taking above view, we need to look into the question, whether Section 164 (2) of Act, 2013 is retrospective or prospective or any other argument for the reason that a plain reading, in our view, leaves no manner of doubt that 'Financial Year' in which Section 164 of Act, 2013 has been enforced has to be excluded; A provision which has been enforced w.e.f. 01.04.2014 and talks of three Financial years, if read with Section 2 (41) of Act, 2013 clearly shows that such 'Financial Year' must commence from 1st April of the concerned year and Financial Year which has ended on 31st March, will not be covered. Probably this was also realized by Central Government, inasmuch as, a General Circular No.0....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itor General of India, however, placed reliance on a single Judge judgment of Delhi High Court in Mukut Pathak (supra) wherein Court has disagreed with the view taken by Karnataka High Court, Gujarat High Court and Madras High Court in the judgments in Yashodhara Shroff (supra), Gaurang Balvantlal Shah (supra) and Bhagwan Das Dhananjaya Das (supra), respectively, and said that mere fact that 'Financial Year' 2013-14 ended on 31.03.2014, will make no difference for the reason that Annual General Meeting (AGM) would be required to be held within next six months of that Financial Year and thereafter annual returns or annual financial statements are to be submitted within 60 days of holding of meeting of AGM or on the last date on which such meeting ought to have been held. Hence, non submission of financial returns/annual returns of Financial Year 2013-14 will also apply and covered within the ambit of Section 164(2)(a) of Act, 2013. In paras 51 and 52 of judgment learned Single Judge of Delhi High Court has said as under : "51. In view of the above, this Court is in respectful disagreement with the view of the Karnataka High Court, Madras High Court and Gujarat High ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....which are the means of disclosure to all Stake Holders; increase compliance rate of filing statutory document and to infuse good corporate governance in regulation of corporate affairs. Section 274 (1) (g) was applicable to public companies but Section 164 of Act, 2013 has been made applicable to private companies also. What is true and valid for public companies, if intention of Legislature is to make provisions of good corporate governance, we find no reason not to apply the same when provision is extended to private companies also, particularly when one of the objective is to ensure strict compliance of obligatory provisions of the Statute with regard to submission of documents to ROC. 55. We also do not find as to how the above provision is violative of Article 19 (1) (g) of the Constitution, inasmuch as, there is no embargo in carrying on business, profession etc. A limited prohibition is applied that too in respect of a tainted Director, who has failed to comply with statutory obligatory provisions of Act. Simultaneously, we find that a broad distinction has been made in respect of a person who has acted as a Director and complied with requirement of statutory obligations ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rovision and no argument has been advanced before us so as to make out a distinction in the logic and rationality given for upholding Section 274 (1) (g) of Act, 1956, earlier in above judgments so as not to apply to Section Section 164 (2) of Act, 2013. We also do not find any per se illegality, irrationality, arbitrariness or lack of intelligible classification, hence, we find no force in the submission that Section 164 (2) of Act, 2013 is ultra vires. This question, therefore, is answered against petitioners. 58. The Third Question is "Whether principles of natural justice are applicable before holding a Director disqualified under Section 164(2) or holding that Office of Director has become vacant under Section 167(1) (a)"? 59. From perusal of provisions quoted above there is no scope of doubt that as soon as disqualifications stated therein are incurred, Director concerned shall stand disqualified by operation of law and/or Office of Director shall become vacant by operation of law, under Section 164 and 167, respectively, as the case may be. Therefore, to attract the consequences, if eventuality which attracts disqualification or vacation of Office of Director has occur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o as to attract Section 164 (2) and 167(1)(a) of Act, 2013. 64. In all these writ petitions, as argued by learned Additional Solicitor General of India, disqualification is failure of Directors in ensuring filing of Annual Returns in three consecutive Financial Years. Which are these Financial Years for which the alleged failure has occurred and how it has been discerned, nothing has been disclosed either in the list published by ROC or disclosed in the counter affidavits. 65. In W.P.-I, counter affidavit is completely silent on this aspect. We find similar flaw in the pleadings in writ petitions wherever counter affidavit has been filed. In many matters respondents have not filed counter affidavit at all, despite time having been granted. 66. In other words, we have no hesitation in observing that pleadings on the part of both parties are extremely poor. ROC has published a list of disqualified Directors without giving details of disqualification incurred by those Directors. This has also not been disclosed to this Court in the counter affidavits filed by respondents. Petitioners, unfortunately, have also not pleaded as to what disqualification they have suffered. 67. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion 455, he shall send a notice to the company and all the directors of the company, of his intention to remove the name of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice. (2) Without prejudice to the provisions of sub-section (1), a company may, after extinguishing all its liabilities, by a special resolution or consent of seventy-five per cent members in terms of paid-up share capital, file an application in the prescribed manner to the Registrar for removing the name of the company from the register of companies on all or any of the ground specified in subsection (1) and the Registrar shall, on receipt of such application, cause a public notice to be issued in the prescribed manner; Provided that in the case of a company regulated under a special Act, approval of the regulatory body constituted or established under that Act shall also be obtained and enclosed with the application. (3) Nothing is sub-section (2) shall apply to a company registered under Section 8. (4) A notice is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ingh in Writ Petition No.1189 of 2019 is Director in Omnis Lifecare LLP and Omnis Engineering LLP. In Writ Petition No.12494 of 2019, petitioner-Manjeet Singh is Director in Vedic Media Creations Pvt Ltd which was incorporated on 23.10.2013 and already struck off while other Company is a LLP i.e. Manita City Motors LLP. Learned Additional Solicitor General of India admitted that provisions of Act, 2013 are not applicable to companies which are LLP since, LLP is governed by Limited Liability Partnership Act, 2008 (hereinafter referred to as 'Act, 2008') and therefore, is beyond the purview of Act, 2013. Still in a mechanical manner, order of disqualification and consequences provided in Section 167 (1) (a) of Act, 2013 in respect of petitioners have been notified by ROC in all the companies including LLP. It cannot be doubted that when petitioners' entitlement or capacity to function as Director is disabled or restricted or restrained by referring to Section 164 (2) read with Section 167(1) (a) of Act, 2013, they are greatly prejudiced as they cannot function as Directors of such company having been declared disqualified. This also prejudices the management of Company an....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of Director has not been allowed to remain immune from any action, instead it is provided in Section 167 of Act, 2013 that any person, if continuing to function as Director though office of Director has become vacant on account of any disqualification specified under Section 167 (1) of Act, 2013, shall be punished with imprisonment for a term which shall be extended to one year or fine which shall not be less than Rs. 1 lakh extendable upto Rs. 5 lakhs or with both. Hence, a Director if knowing well that he has incurred disqualification, continued, he will incur further penalty. Therefore, it cannot be said that continuance of a person as Director though under law he has suffered disqualification and he knows it, and office of Director has become vacant, will remain unpunished but he has to suffer further penalty also. It is, however, true that even this consequence will arise only when basic facts of incurring disqualification are established. This has to be established by an Authority who is responsible for monitoring and ensuring compliance of various provisions of Statute. To this limited extent, in our view, a notice is necessary on the part of ROC to concerned Director, unle....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... so introduced also does not empower the Central Government to cancel or deactivate the DIN of disqualified directors. 108. It is important to note that whereas a DIN is necessary for a person to act as a director; it is not necessary that a person who has a DIN be appointed as a director. Section 164 (2) only provides for temporary disqualification for a period of five years for a person to be appointed/re-appointed as a director. Thus, it is not necessary that the DIN of such person to be deactivated. 109. It is also material to note that sub-section (2) of section 167 of the Act provides for a punishment for any person who functions as a director knowing that his office has become vacant on account of his disqualification as specified in Section 167 (1) of the Act. Thus, Section 167 includes a mechanism for enforcing the rigors of Section 167 (1) of the Act. In the present case, the respondents have sought to cancel/deactivate the DIN of directors disqualified under Section 164 (2) of the Act. This has been done to enforce the provisions of Section 167 (1) of the Act. Clearly, this is not supported by any statutory provision. This Court is of the view that the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oned in the said Rule contemplates cancellation or deactivation of DIN of the Director of the "struck off company" or of the Director having become ineligible under Section 164 of the said Act. The reason appears to be that once an individual, who is intending to be the Director of a particular company is allotted DIN by the Central Government, such DIN would be valid for the lifetime of the applicant and on the basis of such DIN he could become Director in other companies also. Hence, if one of the companies in which he was Director is "struck off", his DIN could not be cancelled or deactivated as that would run counter to the provisions contained in the Rule 11, which specifically provides for the circumstances under which the DIN could be cancelled or deactivated. 31. In that view of the matter, the Court is of the opinion that the action of the respondents in deactivating the DINs of the petitioners-Directors along with the publication of the impugned list of Directors of "struck off" companies under Section 248, also was not legally tenable. Of course, as per Rule 12 of the said Rules, the individual who has been allotted the FIN, in the event of any change in his par....