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2021 (1) TMI 452 - HC - Companies LawRestoration of name of petitioners in the Register of Companies - non-filing of financial statements and annual returns for three consecutive financial years - section 252 of Companies Act - Disqualification of petitioners form acting as petitioners - deactivation of DIN - Section 164 and 167 of the Companies Act, 2013 - HELD THAT - In furtherance of the purpose of this scheme, directors of struck off companies who seek to be appointed as directors of other/new companies, ought to be provided an opportunity to avail of this scheme, provided that they have undergone a substantial period of their disqualification. The scheme clearly seeks to provide a fresh start for directors of defaulting companies who seek appointment in other companies or wish to start new businesses. Therefore, if a substantial period has passed since the disqualification of such directors, they ought to be given an opportunity to avail of the scheme. The CFSS-2020 was last extended till 31st December 2020. If the scheme is extended beyond 30th December, 2020, directors who fall in any of the categories mentioned above ought to be given an opportunity to avail of the same. Let the DIN/DSC numbers of the Petitioners be reactivated so as to enable them continue to act as directors in M/s. Golden Saphire Shipping and Logistics (India) Pvt. Ltd., and also to enable the Petitioners set up any new company in accordance with law. The reactivation be done within one week - petition disposed off.
Issues:
1. Disqualification of directors under Section 164 and 167 of the Companies Act, 2013. 2. Deactivation of Director Identification Number (DIN) and Digital Signature Certificate (DSC). 3. Interpretation of legal aspects based on previous judgments. 4. Applicability of the Companies Fresh Start Scheme 2020 (CFSS-2020) for defaulting companies and directors. 5. Reactivation of DIN/DSC numbers for directors in different scenarios. Analysis: 1. The judgment addresses the disqualification of directors under Sections 164 and 167 of the Companies Act, 2013. It distinguishes between directors disqualified before and after 7th May 2018, based on the proviso to Section 167(1)(a). The judgment relies on the case of Mukut Pathak to establish that the proviso does not have retrospective effect. Directors disqualified before 7th May 2018 can continue in active companies other than the defaulting one, and their DIN/DSC can be reactivated. 2. For directors disqualified post 7th May 2018, the judgment discusses the impact of CFSS-2020 introduced by the Ministry of Corporate Affairs in response to the COVID-19 pandemic. CFSS-2020 aims to provide a fresh start to defaulting companies and directors. The judgment in Sandeep Agarwal interprets the scheme's features, highlighting the immunity and benefits it offers to defaulting companies. Directors of struck off companies, who are also directors in active companies, can have their DIN/DSC reactivated under CFSS-2020. 3. The judgment also considers directors of 'active' companies who have been disqualified and are eligible to avail of CFSS-2020. It references the case of Radhika Byrne, where reactivation of DINs and DSCs of directors of active companies was permitted under the scheme. 4. Directors of struck off companies seeking appointment in other/new companies are addressed in the judgment. It emphasizes the purpose of CFSS-2020 to provide a fresh start and enable directors to start new businesses. The judgment suggests that directors who have completed a substantial period of their disqualification should be given the opportunity to avail of the scheme. 5. In conclusion, the judgment orders the reactivation of DIN/DSC numbers for the petitioners falling under categories (a) and (d). This reactivation enables them to continue as directors in specific companies and set up new businesses. The judgment highlights the importance of the CFSS-2020 and suggests that directors falling under relevant categories should be given the opportunity to benefit from the scheme if extended beyond December 2020.
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