2018 (3) TMI 1800 - HC - Companies Law

Disqualification as directors - non filing of financial statements and annual returns by the respective companies of which they are directors for the consecutive period of three years - Section 164 (2) of the Companies Act, 2013 - entitlement for availing the benefit of CODS 2018 - HELD THAT - Though several contentions have been raised challenging the impugned order of disqualification as a director but during the course of the arguments learned Counsel appearing for the petitioners have prayed that they will be satisfied in case this Court is willing to accept their contention about their entitlement for availing the benefit of CODS2018. In this view of the matter we are not going into the matter of disqualification. All contentions thereto are kept open. Learned ASG has pointed out that the appeals against the order passed by the learned Single Judge of the Delhi High Court are pending. It is, however, pointed out that the operation of the order passed by the Delhi High Court has not been stayed. It is stated across the bar that in fact the order passed by the Delhi High Court is already implemented in several cases. The petitioners to take immediate steps in consonance with the provisions under Section 248(2) of the said Act, 2013 and under the CODS2018, in any case within a period of seven days from today.

Summary

Issues:
Challenging disqualification as directors under Section 164(2) of the Companies Act, 2013 for non-filing of financial statements and annual returns for three consecutive years.

Analysis:
The petitioners challenged their disqualification as directors under Section 164(2) of the Companies Act, 2013 due to non-filing of financial statements and annual returns for three consecutive years. The default in question pertained to the years 2013-2014, 2014-2015, and 2015-2016. While some companies did not carry out any business since inception, others ceased operations after some years. The petitioners admitted to not filing the requisite returns, leading to their disqualification under Section 164(2) of the Act.

In response, the petitioners sought to avail the 'Condonation of Delay Scheme, 2018 (CODS2018)' but were unable to do so as their companies had been struck off the register. They expressed their willingness to seek dissolution of the companies voluntarily under Section 248(2) of the Act. The Additional Solicitor General opposed the petitions, stating that the petitioners allowed shell companies to operate without taking necessary actions. He argued that the CODS2018 only condones filing delays and that the Government lacks the power to revive a struck-off company. The ASG emphasized that the petitioners should have declared the companies as dormant or applied for striking them off under Section 455 or 248(2) respectively.

After reviewing the relevant Act provisions and hearing all parties, the Court refrained from delving into the disqualification matter. The petitioners expressed their desire to avail the CODS2018 and undertook not to revive the struck-off companies. They committed to taking steps under Section 248(2) in line with the directives from the Delhi High Court. The Court directed the respondents to follow the directives from previous cases and ordered the petitioners to act in accordance with Section 248(2) and CODS2018 within seven days. The operation of the disqualification list was stayed until a decision was made by the respondents regarding the petitioners' requests.

In conclusion, the Court disposed of the writ petitions with the mentioned directions, instructing the Registrar of Companies to activate the petitioners' DIN and DSC. The parties were directed to act upon the order, and a request to stay the order's operation was denied, considering the actions taken based on the Delhi High Court's order.