2018 (1) TMI 1405 - HC - Companies Law

Disqualification of directors - Lists of disqualified directors published by respondent nos. 1 and 2 to the extent that it includes the petitioner s name - revival of the Companies - Held that - Since some of the companies in which the petitioner is the director have been struck off from the Register of Companies they are deprived of the benefit of CODS-2018. The petitioner also states that he is not in a position to seek revival of companies that have not carried out any business as indicated above. However, the petitioner would seek voluntary dissolution of those companies under Section 248(2) of the Act if the petitioner is provided an opportunity to do so. In respect of other companies that have carried on business in the past three years or hold any asset(s), the learned counsel for the petitioner states that the petitioner and/or the concerned company shall file an appeal before the National Company Law Tribunal (NCLT) under Section 252 of the Act. Thus this Court is of the view that the petitioner ought to be given a final opportunity to avail of the CODS-2018 and, accordingly, directs as under - (a) The companies will file all requisite documents in relation to the aforesaid companies to avail of CODS-2018; (b) The petitioner will also file an affidavit enclosing the resolutions for voluntarily striking off the names of the companies that have not been carrying on the business and have conducted no transactions in the past three years, as required under Section 248(2) of the Act; (c) The petitioner would make the necessary application under CODS- 2018 along with the requisite charges within a period of four weeks from today; (d) All documents/applications would be submitted to the Registrar of Companies in hard copies; (e) The ROC will scrutinise the same and if the same are found to be otherwise in accordance with Section 248(2) of the Act, the petitioner would be granted benefit of CODS -2018 in respect of those companies. Further, the removal of the aforementioned companies from the Register under Section 248(1) of the Act would be deemed to be under Section 248 (2) of the Act and petitioner s application under Section CODS-2018 would be sympathetically considered by the Registrar. The petitioner shall also approach the NCLT under Section 252 of the Act for revival of the Companies that have carried on business in the past three years or hold assets and have been struck off for non-filing of the requisite documents, within a period of four weeks from today. The NCLT is requested to consider the same within a period of four weeks thereafter. The impugned list of all disqualified directors to the extent it includes the name of the petitioner is stayed till 31.03.2018.

Summary

Issues:
Challenging inclusion in disqualified directors' list, non-operational companies, seeking benefit of Condonation of Delay Scheme, voluntary dissolution of non-operational companies, filing appeals before NCLT, stay on inclusion in disqualified directors' list.

Analysis:
The petitioner challenged their inclusion in the disqualified directors' list due to their association with various companies that have not conducted any business for the past three years. These companies lack assets and operational bank accounts, and the petitioner failed to file required returns under the Companies Act, 2013 for these entities. Additionally, the petitioner is involved with other companies that have conducted business or hold assets. The petitioner expressed a desire to benefit from the Condonation of Delay Scheme, 2018 (CODS-2018), but due to some companies being struck off the register, they were unable to avail of the scheme.

The petitioner stated their inability to revive non-operational companies and expressed willingness to voluntarily dissolve such entities under Section 248(2) of the Act if given the opportunity. For companies that have conducted business or hold assets, the petitioner planned to file appeals before the National Company Law Tribunal (NCLT) under Section 252 of the Act. The court acknowledged the petitioner's situation and granted a final opportunity to avail of CODS-2018, issuing specific directives to fulfill necessary requirements within a stipulated timeline.

The court directed the petitioner to file all requisite documents for CODS-2018, submit resolutions for voluntary striking off non-operational companies, and make necessary applications within four weeks. The Registrar of Companies would scrutinize the submissions, granting CODS-2018 benefits if compliant with Section 248(2) of the Act. The petitioner was also instructed to approach the NCLT for revival of companies with business activities or assets that were struck off, within the same timeframe. The court stayed the inclusion of the petitioner's name in the disqualified directors' list until a specified date.

The order was made based on the petitioner's unequivocal statements, warning of potential Contempt of Court if found incorrect. The court disposed of the petition and pending application, emphasizing the importance of adherence to the directives provided in the judgment.