2020 (1) TMI 1372 - HC - Companies Law

Disqualification of Directors - Deactivation of DIN - Striking off the name of the Company from the Register of the Companies - non filing of annual returns for a continuous period of three years - Section 248(1) of the Companies Act 2013 - vires of the proviso under Section 167(2)(a) of the Act which was inserted to the Companies (Amendment Act 2017) - HELD THAT - Identical issue decided in the case of KHUSHRU DORAB MADAN VERSUS UNION OF INDIA 2020 (1) TMI 1212 - MADRAS HIGH COURT where it was held that In the present writ petition, the three financial years 2014-2015, 2015-16 and 2016-17 have been completed and since annual returns / financial statements have not been filed, disqualification automatically follows and when disqualification is incurred, deactivation of Director Identification Number also automatically follows. The DIN number can exist only during the life time of post of Directorship and not for the entire life of the individual. Issuing a prior notice would be of no avail and would only be an empty formality since the provision of law is clear on this aspect. Petition is dismissed.

Summary

Issues Involved:
1. Vires of the proviso under Section 167(2)(a) of the Companies Act 2013.
2. Disqualification of directors for non-filing of financial statements or annual returns.
3. Requirement of notice prior to disqualification.
4. Deactivation of Director Identification Number (DIN).

Issue-wise Detailed Analysis:

1. Vires of the Proviso under Section 167(2)(a) of the Companies Act 2013:
The court referenced a previous judgment where the vires of the proviso under Section 167(2)(a) of the Companies Act 2013, inserted by the Companies (Amendment Act 2017), was challenged. The Division Bench upheld the vires of the said provision. The court emphasized that the proviso to Section 167(1)(a) must be interpreted in ordinary terms and applies to the entirety of Section 164, including sub-section 2. The proviso aims to prevent the anomalous situation where the post of Director remains vacant perpetually due to automatic disqualification and exists in the interest of transparency and probity in governance. The court concluded that the proviso is neither manifestly arbitrary nor does it offend any fundamental rights guaranteed under Part III of the Constitution of India.

2. Disqualification of Directors for Non-Filing of Financial Statements or Annual Returns:
The Companies Act 2013 brought significant changes, including the disqualification of directors for non-filing of financial statements or annual returns for three consecutive financial years. The court noted that the provisions are clear and unambiguous. If a director of a company fails to file financial statements or annual returns for three consecutive financial years, they are ineligible for reappointment in that company or appointment in any other company for five years. The court emphasized that the law mandates strict compliance and disqualification automatically follows if the stipulated period is not adhered to.

3. Requirement of Notice Prior to Disqualification:
The court addressed the issue of whether notice is required before disqualification. It referred to previous judgments where the courts held that notice is essential if the three financial years had not been completed. However, in the present case, the court found that the three financial years (2014-15, 2015-16, and 2016-17) had been completed, and the companies had defaulted in filing the required documents. The court ruled that issuing a notice would be an empty formality since the law is clear, and only one conclusion is possible. The principle of natural justice does not necessitate notice when it would serve no practical purpose.

4. Deactivation of Director Identification Number (DIN):
The court examined the deactivation of the Director Identification Number (DIN) upon disqualification. It stated that the DIN coexists with the office of Directorship and must be deactivated when a director is disqualified. The term 'life' of the DIN refers to the duration of the individual's directorship, not their entire lifespan. The court rejected the argument that the DIN should remain active even after disqualification or resignation. The court concluded that deactivation of the DIN is a natural consequence of disqualification.

Conclusion:
The court dismissed the writ petitions, stating that there are no merits in the arguments presented. The court reiterated that the disqualification and deactivation of DIN automatically follow if the financial statements or annual returns are not filed for three consecutive financial years. The issuance of notice would be an empty formality as the law is clear on this aspect. Consequently, all the writ petitions and connected miscellaneous petitions were dismissed with no costs.