2020 (8) TMI 500 - HC - Companies Law

Disqualification of Directors - non-submission of annual returns and balance-sheet for previous financial years starting from 2011 to 2012 to 2013 to 2014 - Section 164(2) (a) of the Companies Act, 2013 - HELD THAT - On the question whether proviso to Section 167(1) is retrospective or prospective, detailed hearing should be made on exchange of affidavits. Therefore, the respondents are at liberty to file affidavit-inopposition within four weeks from date and serve a copy of the same to the learned advocate for the petitioner. In present set of writ petitions the petitioners have been able to make out an arguable case and balance of convenience and inconvenience is in favour of the petitioners - the petitioners are at liberty to file affidavit-in-reply within two weeks from the date of receipt of affidavit-in-opposition.

Summary

Issues: Challenge to disqualification of directors under Section 164(2)(a) of the Companies Act, 2013 for non-submission of annual returns and balance-sheet, interpretation of Proviso (a) of Section 167(1) regarding director disqualification, retrospective or prospective application of proviso to Section 167(1).

Analysis:
1. Challenge to Disqualification: The petitioners challenged their disqualification as directors of various companies due to non-submission of annual returns and balance-sheets for previous financial years. The action was taken by the Registrar of Companies under Section 164(2)(a) of the Companies Act, 2013. The petitioners argued that the disqualification was in violation of Proviso (a) of Section 167(1). They highlighted that the proviso was inserted post their disqualification period, questioning the validity of their disqualification.

2. Interpretation of Proviso (a) of Section 167(1): The petitioners contended that the proviso to Section 167(1) was introduced after their disqualification period, emphasizing that it could not be applied retrospectively. They referred to previous court orders granting injunctions against disqualifications based on non-submission of returns before the proviso's enactment. The respondents argued that the proviso was clarificatory and curative, aiming to ensure proper application of the deeming provision of Section 167(1).

3. Retrospective or Prospective Application of Proviso: The court deliberated on whether the proviso to Section 167(1) should be considered retrospective or prospective. The respondents cited a Supreme Court judgment to support their argument that the proviso should be viewed as clarificatory and not prospective. The court decided that a detailed hearing was necessary to determine the retrospective or prospective nature of the proviso, allowing the respondents to file affidavits within a specified timeframe.

4. Judicial Precedents and Court Orders: The court considered previous judgments, including one by a Division Bench and another by a Single Bench, which quashed disqualification orders issued by the Registrar of Companies. Despite the amendment to the Companies Act, 2013, the court noted a consistent stance in favor of directors challenging disqualifications, indicating that the petitioners had presented a plausible case. Consequently, the court issued an interim order in favor of the petitioners, allowing them to file affidavits in response to the opposition within a specified period.

In conclusion, the court acknowledged the petitioners' arguments regarding the timing of the proviso's enactment concerning their disqualification period and granted an interim order in their favor based on the balance of convenience and inconvenience. The matter was scheduled for further proceedings in the Combined Monthly List of September 2020, indicating a need for detailed examination and consideration of the legal aspects involved.