2020 (12) TMI 457

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....om the date on which its name is restored on the Register of Companies by the Registrar of Companies. The appellant is directed to submit a declaration from the Directors regarding the deposits made during the demonetization period with the Registrar of Companies. ii. The appellant is directed to pay the costs of Rs. 25,000/- (Rupees Twenty Five Thousand only) to the account of Central Government in favor of the Pay & Accounts Officer, Ministry of Corporate Affairs, Southern Region, Chennai and payment of proof be handed over to Registrar of Companies, Kerala within three weeks of receipt of this order, while submitting the documents, failing which the order will lapse. iii. If the Directors are disqualified, then the DIN are not allowed to be reactivated as they are disqualified. However, Registrar of Companies, Kochi is directed to allow for filing of the Annual Returns and Financial Statements by the company to restore the name of the company. iv The Company's representative, who has filed the Company Appeal, is directed to personally ensure compliance of this order. v. On such delivery and after duly complying with the above directions, the R....

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....per provisions of Section 167(3) of the Companies Act where all the directors of the Company vacate their offices under any of the disqualification specified in Section 167(1), the promoter shall appoint the required number of directors who shall hold office till the directors are appointed by the Company in a General Meeting and also stated that the Respondent only acted as per the provisions of Section 164(2) read with Section 167 of the Companies Act, 2013.During the relevant period, when the directors of the Applicant Company were declared disqualified due to default committed by the Applicant Company. 7. Provisions of Section 164(2) of the Companies Act, 2013 provided as follows: - Section 164(2). Disqualifications for appointment of Directors: - (2) No person who is or has been a director of a company which- (a) has not filed financial statements or annual returns for any continuous period of three financial years; or (b) has failed to repay the deposits accepted by it or pay interest thereon or to redeem any debentures on the due date or pay interest due thereon or pay any dividend declared and such failure to pay or redeem continues fo....

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....014-2015, 2015-2016 & 2016-2017. Directors of the Applicant Company are disqualified under Section 164(2)(a) of the Companies Act, 2013 for 5 years with effect from 01.11.2017 to 31.10.2022. 11. It is their further submission that in various Writ Petitions filed before the Hon'ble High Court of Bombay concerning disqualification of Directors, the Hon'ble Court had quashed the process of disqualification. The Ministry of Corporate Affairs preferred SLP Nos. 18693 to 18703 of 2018 before the Hon'ble Apex Court, and vide order dated 06.08.2018, the Hon'ble Apex Court stayed the above orders passed by the Hon'ble High Court of Bombay. 12. In the above-mentioned circumstances, the Respondents submitted that this Application filed by the Applicant Company is not maintainable and is liable to be dismissed with a direction to the Applicant to approach appropriate forum for activating the DIN of the Directors of the Applicant Company for enabling them to file defaulted statutory returns of the Company. 13. In the rejoinder filed by the Applicant on 12.10.2020 stated that MA/109/KOB/2020 is maintainable under Sections 424(1) and (3) of the Companies Act. Though this Tribunal while d....

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....grieved party and which would lead to unwanted expenses both to the public exchequer as well as to the litigating party apart from draining the resources and burning up the precious judicial time both of the Hon'ble High Court and that of this Tribunal. Therefore, the suggestion coming from no less than a high ranking official like the Respondent leaves much to be desired. Even filing of this would not have been necessitated if some foresight was applied by the concerned officials. 16. It is further argued that the decision of the Hon'ble High Court of Bombay is not in respect of the deactivation of the DINs of the Directors in respect of the struck off Companies. The said decision of the Hon'ble High Court of Bombay pertains to the disqualification under Section 164(2) of the Companies Act, 2013 in respect of other Companies since the proviso of Section 167(1) of the Companies Act, 2013 is not attracted in the case of such disqualification and consequent vacation of the offices in all other Companies other than the defaulted Company. The stay order passed by the Hon'ble Supreme Court while issuing notice to the Respondents in Special Leave Petitions to Appeal filed by the ROC, ....