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TMI Blog2020 (4) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... arain Pathak, Ujjawal Satsangi, Jagriti Singh, Dhananjay Kumar Mishra, Shubham Agarwal, Ankur Agarwal, Suyash Agarwal, Ravinath Tiwari, Nishant Mehrotra, Mahendra Kumar Maurya, Anurag Vajpeyi, Shivendra Bahadur, Rohit Nandan Pandey, Mehul Khare, Dharmendra Kumar Gupta, Kiran Gupta, Srijan Mehrotra, Anuj Kumar, Rahul Jain, Anurup Dutta, Urvashi Jain, Abhay Kumar Singh, Manu Ghildyal, Dinesh Kumar Rai, Ravinath Tiwari, Abhinav Gaur, Abhishek Kumar Srivastava, Virendra Kumar, Rohit Nandan Pandey, Lal Mani Tripathi, Arnab Banerji, Vivek Ratan Agrawal, Mohd Nasir, Bindu Kumari, Mohd Nasir, Amit Verma Counsel for Respondent :- Sanjay Kumar Yadav, Prashant Singh Som, Sanjay Kumar Yadav, Neeru, A.S.G.I., Narendra Singh, Gyan Prakash, Sanjay Kumar Om, Ravi Prakash Srivastava, Om Prakash Gupta, Purnendu Kumar Singh, Rajesh Tripathi, Manoj Kumar Singh, Avijit Saxena, Manu Vardhana, Krishna Agarawal, Manu Vardhana, Narendra Kumar Chatterjee, Arvind Kumar Goswami, Ram Dular, Vinay Kumar Singh, Annapurna Singh, Manjari Singh, Harshita Rani, Brijesh Kumar, Kunal Ravi Singh, V.K. Singh, Sabhajeet Singh, Kuldeep Singh Chauhan, Sabhajeet Singh, C.S.C., Krishna Ji Shukla, Jitendra Prasad Mishra, As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019, 28569 of 2019, 33232 of 2019, 33354 of 2019, 33355 of 2019, 33595 of 2019, 35065 of 2019, 24942 of 2019, 25079 of 2019, 25120 of 2019, 25321 of 2019, 25336 of 2019, 25462 of 2019, 25646 of 2019, 25801 of 2019, 25938 of 2019, 26021 of 2019, 26042 of 2019, 26059 of 2019, 26060 of 2019, 26104 of 2019, 27609 of 2019, 27613 of 2019, 28634 of 2019, 28809 of 2019, 28829 of 2019, 29297 of 2019, 29986 of 2019, 30053 of 2019, 30578 of 2019, 30842 of 2019, 31091 of 2019, 31124 of 2019, 31177 of 2019, 31651 of 2019, 31689 of 2019, 31698 of 2019, 31725 of 2019, 31845 of 2019, 31923 of 2019, 31967 of 2019, 32004 of 2019, 32330 of 2019, 32569 of 2019, 32645 of 2019, 33707 of 2019, 34283 of 2019, 34563 of 2019, 34582 of 2019, 35479 of 2019, 35681 of 2019, 35792 of 2019, 36608 of 2019, 38175 of 2019, 19282 of 2019 Jai Shankar Agrahari, Gurnam Singh And Another, Niraj Agrawal And Another, Isha Sachdeva, Avinash Singh And Another, Kuldeep Singh, Surender Kumar, Ranvijay Singh, Rashid Khan, Manjeet Singh, Sameer Munshi, Arvind Kumar Dwivedi, Omar Mukhtar Husain, Krishna Chandra Gupta And Another, Sangita Verma, Atul Singh Kumar, Rajesh Ahuja And Another, Ruchir Pandey And Another, Deepika Bali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar Bhardwaj Versus Union Of India, Registrar Of Companies ORDER Delivered by Hon'ble Sudhir Agarwal, J 1. In all these writ petitions, petitioners were Directors of various Companies and have been declared disqualified to continue as Directors of all the Companies in which they were Directors, under Section 164 (2) of Companies Act, 2013 (hereinafter referred to as "Act, 2013"), for a period of five years. Petitioners, therefore, have challenged declaration made by Registrar of Companies, U. P, Kanpur (hereinafter referred to as "ROC") publishing notice of such disqualification of petitioners specifying the period of five years and in most cases it is from 01.11.2016 to 31.10.2021 while in some cases period of five years varies but total period of disqualification is five years. Petitioners have prayed for quashing of aforesaid declaration made by ROC. They have also sought a mandamus directing respondents to reactivate petitioners' Director Identification Number (hereinafter referred to as 'DIN') and restore their names on the Roll of Directors. 2. The issues raised in all these writ petitions are common and facts are also similar, hence as agreed by learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a mechanical manner, petitioner's status has been shown as a "disqualified Director" and his DIN No.03266735 has been made inactive and/ or suspended. Section 164 (2) (a), which not only disqualifies a "Director" in respect of Defaulting Companies but extends the same to other Companies which have not committed default, as such it is irrational and unreasonable. It is in violation of fundamental right of petitioner under Article 19 (1) (g) of the Constitution therefore, Section 164 (2) (a) of Act, 2013 is arbitrary and ultra vires of the Constitution. It has no nexus with the objective sought to be achieved and has the effect of penalizing management of the Companies which are active, having not committed any default rendering their functioning difficult by disqualifying "Director" of those Companies only on the ground that those Directors are also holding similar Office in other Companies which have committed default attracting disqualification under Section 164 (2) of Act, 2013. 7. It is also pleaded that Section 164 of Act, 2013 came into force on 01.04.2014 i.e. in the Fiscal Year 2014-2015 while Act, 2013 came into force on 12.09.2013. Extending aforesaid provision to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision for enhanced fine in case of repeated default has been included vide Section 451; Section 164(2) provides for disqualification of Directors in case the Company has failed to file Financial Statement or Annual Return for continuous period of three years "has been made and is extended to all Companies"; Vide General Circular No.34 of 2014 an opportunity was provided to defaulting companies to make their default good by filing belated documents on payment of certain fee and thereby avoiding prosecution etc; another scheme was launched by respondents, namely, "Condonation of Delay Scheme, 2018" commencing from 01.01.2018; in the present case ROC, Kanpur has acted under Section 164(2) and Section 167 of Act, 2013; it is the duty of "Directors" to ensure compliance of statutory requirements in respect of companies in which they are Directors; Petitioner has failed to ensure it; there is no retrospectivity given to Sections 164 or 167; similar argument has been negated by Calcutta High Court in Nabendu Dutta and others vs. Arindam Mukherjee, 2004(55) SCL 146; Respondents have not issued any notification or order regarding disqualification of petitioner but only identified; there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons Pvt Ltd Private 16.05.2013 Active 7. Agranate Leisure Pvt Ltd Private 08.02.2013 Active 8. Agranate Infra Limited Private 06.03.2013 Active 9. Prasantush Buildwell Pvt Ltd Private 04.06.2013 Active 10. Newriver Buildwell Pvt Ltd Private 23.01.2014 Active 11. Singh Infrazone Pvt Ltd Private 23.03.2015 Active Petitioner-2. Jaspal Singh DIN-2128430 1. Newwaves India Estate Management Services Private Limited Private 27.05.2008 Struck off 2. Writ Petition No.34503 of 2018 Petitioner-1. Dr. Niraj Agrawal DIN-00501880 1. Sairam Infraventures Private Limited Private 23.03.2012 Struck off 2. Vatsalya Heart Centre Private Private 14.06.2012 Active 3. Vatsalya Institute of Medical Sciences Private 22.12.2014 Active 4. Vatsalya Maternity and Surgical Centre Pvt Ltd. Private 02.04.1998 Active 5. Vatslya Hospital and Research Center Pvt Ltd. Private 06.12.2004 Active 6. Vashishtha Vatsalya Real Estates LLP LLP 20.06.2017 Active Petitioner-2. Dr. Kritika Agrawal DIN-00501979 1. Sairam Infrastructures Pvt Ltd Private 23.03.2012 Struck Off 2. Vatsalya Institute Medical Sciences Private 22.12.2014 Active 3. Va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions Pvt Ltd Private 23.07.2015 Active 7. One Place India Sales Pvt Ltd Private 28.10.2015 Active 8. One Place Motion Pictures Pvt Ltd Private 19.12.2016 Active 9. 1981 One Place Imperial Education Forum - 14.03.2017 Active 10. One Place Brewries & Distillers Pvt Ltd Private 09.01.2018 Active 11. One Place News Broadcasting Pvt Ltd Private 04.10.2018 Active 8. Writ Petition No.2473 of 2019 Petitioner- Rashid Khan DIN-01384872 1. Veera Infrahome Pvt Ltd Private 06.12.2012 Struck off 2. Buddha Holidays Pvt Ltd Private 02.04.2007 Active 9. Writ Petition No.12494 of 2019 Petitioner- Manjeet Singh DIN-06651509 1. Vedic Media Creations Private Limited Private 23.10.2013 Struck off 2. Manita City Motors LLP LLP 20.12.2016 Active 10. Writ Petition No.12497 of 2019 Petitioner- Sameer Munshi DIN-02662621 1. Abeer Tea and Foods Private Limited Private 10.10.2013 Struck off 2. Mihama India Pvt Ltd Private 18.10.2014 Active 11. Writ Petition No.12502 of 2019 Petitioner- Arvind Kumar Dwivedi DIN-03578218 1. Esteem Placement and Consulting Services Private Limited Private 02.05.2012 Struck off 2. Steem Placement and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n No.12935 of 2019 1. Rajesh Ahuja DIN-02168327 2. Ashok Kumar Gupta DIN-00040553 1. Force Solar Power Private Limited Private 16.08.2013 Struck off 2. LLP Master Data Private 16.08.2013 Active 17.Writ Petition No.13063 of 2019 Petitioner-1. Ruchir Pandey DIN-05226935 1. Matru Dairy Producer Company Limited Private 03.12.2013 Struck off 2. Naini Builders and Developers Pvt Ltd Private 01.02.2018 Active 3. R Square Media Solutions Pvt Ltd Private 20.03.2012 Active 4. Bhudeva Propcon Pvt Ltd Private 30.03.2015 Active 5. Om Namah Shivay Realtors Pvt Ltd Private 23.05.2012 Active 6. Rudrajit Enterprises Pvt Ltd Private 01.06.2015 Active Petitioner-2. Ashok Kumar Pandey DIN-06478646 1. Matru Dairy Producer Company Limited Private 03.12.2013 Struck off 2. Beti Beta Foods and Beverage Cafe OPC Pvt Ltd Private 19.05.2015 Active 18.Writ Petition No.13072 of 2019 Petitioner-1. Deepika Bali DIN-02729116 1. Noble Career Solutions Private Limited Private 16.09.2009 Struck off 2. Bali Den Cable Network Pvt Ltd Private 01.09.2015 Active 3. BCN Media Pvt Ltd Private 19.08.2009 Active 4. Bali Net Com Pvt Ltd Private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttan Donex Buildtech Pvt Ltd Private 12.10.2012 Struck off 2. Manhattan Infrabuild Pvt Ltd Private 06.08.2013 Struck off 3. Manhattan Infracon Pvt Ltd Private 15.02.2012 Struck off 4. Kingson Infradevelopers LLP LLP - Active 5. Maniere Home LLP LLP - Active 6. A S Civitech Pvt Ltd Private - Active 7. Triple Play Telecommunication Pvt Ltd Private - Active 27. Writ Petition No.17508 of 2019 Petitioner-Shashank Jain DIN-00508208 1. Adhishree Steels Ltd Public 23.11.2011 Struck off 2. Plutus Natural Resources Pvt Ltd Private 11.04.2012 Struck off 3. Shreeji Georeasources Pvt Ltd Private 16.03.2012 Struck off 4. Good Earth Constructions Pvt Ltd Private 08.08.1990 Active 5. Dwarka Education Pvt Ltd Private 25.07.2011 Active 28.Writ Petition No.17516 of 2019 Petitioner-Hariom Dixit DIN-00607567 1. Omabhiti Developwell Pvt Ltd Private 02.02.2012 Struck off 2. Gayatri Resources Pvt Ltd Private 21.05.2009 Active 29. Writ Petition No.17525 of 2019 Petitioner-Amit Kumar DIN-03098168 1. Manhattan Donex Buildtech Pvt Ltd Private 12.10.2012 Struck off 2. Manhattan Infrabuild Pvt Ltd Private 06.08.2013 Struck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tination Pvt Ltd Private 22.01.2013 Struck off 2. Sapphire Sambhav Infraestates Pvt Ltd Private 25.09.2012 Active Petitioner-3 Girish Kumar Misra DIN-06512407 1. City Infradestination Pvt Ltd Private 22.01.2013 Struck off 2. Chitwan City Pvt Ltd Private 11.03.2014 Active 35. Writ Petition No.17664 of 2019 Petitioner-Chanpreet Singh DIN-02988526 1. Pratishta Computer Services Pvt Ltd Private 02.08.1996 Struck off 2. Mannat Infrahome Pvt Ltd Private 04.05.2012 Active 36. Writ Petition No.17729 of 2019 Petitioner-1 Farazur Rahman DIN-07024442 1. Mandolin Infrahousing Pvt Ltd Private 28.08.2012 Struck off 2. Walkwater Constructions Pvt Ltd Private 28.08.2012 Struck off 3. Kinda Care Pvt Ltd Private 25.03.2015 Under process of striking off 4. SFS Infra Housing Projects Pvt Ltd Private 25.02.2016 Active Petitioner-2 Shamim Ahmad DIN-07117090 1. Mandolin Infrahousing Pvt Ltd Private 28.08.2012 Struck off 2. Walkwater Constructions Pvt Ltd Private 28.08.2012 Struck off 3. SFS Infra Housing Projects Pvt Ltd Private 25.02.2016 Active Petitioner-3 Neelam Sajid DIN07117015 1. Mandolin Infrahousing Pvt Ltd Priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rareality Pvt Ltd Private - Active 11. LDR Developers Pvt Ltd Private - Active 12. R.S.V. Nirman Pvt Ltd Private - Active 13. SJ Coloniser Private Ltd Private - Active 14. Tas Construction Pvt Ltd Private - Active 15. J. J. Infra Promoters Pvt Ltd Private 03.10.2011 Struck off 41. Writ Petition No.17989 of 2019 Petitioner-1 Gaurav Agarwal DIN-02526374 1. Carmel Ventures Pvt Ltd Private 29.02.2012 Active 2. GS Infraventures Pvt Ltd Private 09.04.2012 Struck off 3. Hindukush Infrastructure Pvt Ltd Private 10.07.2012 Struck off 4. Indes Venture Pvt Ltd Private 27.03.2012 Active 5. Jeevah Vincom Pvt Ltd Private 17.05.2010 Active 6. Jupiter Tradelinks Pvt Ltd Private 22.08.2008 Struck off 7. Kaishori Marketing Pvt Ltd Private 18.05.2010 Active 8. Nandini Ventures Pvt Ltd Private 12.01.2012 Active 9. Primeland Properties and Infrastructure Pvt Ltd Private 09.04.2012 Active 11. Carols Infratech Pvt Ltd Private 11.07.2012 Struck off 12. Equator Civiltech Pvt Ltd Private 28.08.2012 Active 14. Granite Ventures Pvt Ltd Private 27.03.2012 Struck off 15. Gurushikhar Infrahousing Pvt Ltd Private 10.07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of 2019 Petitioner-1 Shahin Anees 1. United Infraplanners Pvt Ltd Private 04.10.2011 Struck off 2. Hatchcrate Pvt Ltd Private 21.05.2018 Active Petitioner-2 Anees Ahmad Khan DIN-05266532 1. United Infraplanners Pvt Ltd Private 04.10.2011 Struck off 2. Hatchcrate Pvt Ltd Private 21.05.2018 Active Petitioner-3 Arshad Ali Khan DIN-02911315 1. United Infraplanners Pvt Ltd Private 04.10.2011 Struck off 2. Hatchcrate Pvt Ltd Private 21.05.2018 Active 45. Writ Petition No.19011 of 2019 Peititoner-Neeraj Verma DIN-07495092 1. G & G Technobuild Pvt Ltd Private 25.02.2013 Struck off 46. Writ Petition No.19020 of 2019 Petitioner-Anjani Kumar DIN-03230838 1. Rudra Buildzone Ltd Public 17.10.2012 Struck off 2. Lifelong Commercial Services Ltd Public 21.10.2010 Struck off 47. Writ Petition No.19227 of 2019 Petitioner-Nitin Sinha DIN-02694563 1. Petron International (India) Ltd Public 01.11.1989 Struck off 2. HBS Agro & Biotech Engineering Enterprises Pvt Ltd Private - Active 3. HBS Automobiles and Engineering Pvt Ltd Private - Active 4. DSB Consulance Pvt Ltd Private - Active 5. Transcend Nutressential Inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.12.2004 Active 3. Shree Saurabh Infrastructure Development Private 27.05.2011 Active Petitioner-2 Nirupama Jain DIN-00276192 1. Shree Saurabh Sagar Builders and Developers Pvt Ltd Private 13.12.2004 Active 2. Shree Saurabh Infrastructure Development Private 27.05.2011 Active Petitioner-3 Vibha Jain DIN-02879685 1. Shree Saurabh Sagar Builders and Developers Pvt Ltd Private 13.12.2004 Active 2. Shree Saurabh Infrastructure Development Private 27.05.2011 Active 53.Writ Petition No.19297 of 2019 Petitioner-1 Kamal Chug DIN-00059460 1. Jak Remedies Pvt Ltd Private 23.05.2006 Active 2. Vidhyut Carbon Fertilizers Pvt Ltd Private 23.07.2014 Struck off Petitioner-2 Manoj Kumar Goel DIN-06888437 1. Vidhyut Carbon Fertilizers Pvt Ltd Private 23.07.2014 Struck off Petitioner-3 Nand Kishore Goel DIN-01685952 1. Pacific Orgochem Ltd 24.04.1995 Active 2. Vidhyut Carbon Fertilizers Pvt Ltd Private 23.07.2004 Struck off Petitioner-4 Harsh Goel DIN-016860007 1. Pacific Orgochem Ltd 24.09.2018 Active 2. Vidhyut Carbon Fertilizers Pvt Ltd Private 23.07.2014 Struck off 54. Writ Petition No.19315 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2 Shirish Agrawal DIN-06754584 1. Goldenera Plastopack Pvt Ltd Private 31.03.2014 Active 2. Goldenera Thermo Fibre Industries Pvt Ltd Private 07.01.2014 Struck off Petitioner-3 Anjani Kumar Rungta DIN-06501555 1. Goldenera Thermo Fibre Industries Pvt Ltd Private 07.01.2014 Struck off 2. Gorakhpur Greentech Properties Pvt Ltd Private 27.02.2013 Active 62. Writ Petition No.20450 of 2019 Petitioner-Syed Amir Haider Zaidi DIN-02656609 1. 3GGenersys Infra Developers Pvt Ltd Private 10.06.2013 Active 2. EF Genersys Pvt Ltd Private 08.07.2009 Struck off 63. Writ Petition No.20451 of 2019 Petitioner-Rajeev Kumar Rajput DIN-05183084 1. Sugam Buildwell Pvt Ltd Private 31.01.2012 Struck off 2. Sugam Infratech Pvt Ltd Private 29.01.2014 Active 3. NKV Homes Pvt Ltd Private 15.02.2010 Active 4. Balize Constructions Pvt Ltd Private 11.04.2013 Active 64.Writ Petition No.20455 of 2019 Petitioner-Manorama Gupta DIN-01910631 1. Dauji Chemicals Pvt Ltd Private 22.02.1977 Active 2. Sri Dalchand Roller Flour Mills Pvt Ltd Private 23.05.1974 Struck off 65. Writ Petition No.20548 of 2019 Petitioner-1 Gyan Vardhan Agarwal DI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Shelters Ltd Public 21.06.2006 Struck off 4. New Ears India Shipping and Cargo Ltd Public 01.06.2006 Stuck off 5. Era Motels Ltd Public 21.06.2006 Struck off 75. Writ Petition No.21248 of 2019 Petitioner-Meesam Ali Khan DIN-02246315 1. MA Profit Mutual Benefit Ltd Public 25.11.2005 Struck off 2. Era Colonizers Promoters and Developers India Pvt Ltd Private 13.02.2006 Active 3. Juddi Maritime Pvt Ltd Private 18.08.2008 Active 4. WM Bluechip Investment Services Pvt Ltd Private 11.02.2009 Active 5. Admire Builder Pvt Ltd Private 19.05.2009 Active 6. Zircon Construction Pvt Ltd Private 19.05.2009 Active 7. Eras Lucknow Medical College and Hospital Pvt Ltd Private 30.05.2011 Active 8. Era Educational Services Pvt Ltd Private 28.05.2011 Active 9. Era Agri Products Pvt Ltd Private 23.08.2011 Active 10. Era Fishery Products Pvt Ltd Private 23.08.2011 Active 11. Era Healthcare Pvt Ltd Private 04.01.2012 Active 12. H T Financial Services Pvt Ltd Private 06.01.2012 Active 13. True Media Indian Communication Ltd Public 01.06.2006 Active 14. New Eras India Shipping and Cargo Ltd Public 01.06.2006 Active 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fare Foundation Private 19.08.2011 Active 80. Writ Petition No.21699 of 2019 Petitioner-1 Gauravi Dwivedi DIN-06586343 Petitioner-2 Indira Pandey DIN-06586348 1. Futurevision Broadcast Pvt Ltd Private 23.05.2013 Active 2. Saidwar Projects Pvt Ltd Private 12.08.2013 Struck off 3. Orientalbulls India Nidhi Ltd Public 08.01.2015 Active 81. Writ Petition No.21935 of 2019 Petitioner-Saket Uberoi DIN-01669188 1. Genesis Direct Sales Pvt Ltd Private 26.12.2008 Struck off 2. Linear Skills Pvt Ltd Private 01.12.2014 Active 3. Linear Marketing Pvt Ltd Private 07.04.1997 Active 82. Writ Petition No.22075 of 2019 Petitioner-Shakti Singh DIN-05287429 1. Desire Global Tours Pvt Ltd Private 25.05.2012 Active 2. Sheoraj Foods Management Pvt Ltd Private 19.11.2012 Struck off 83. Writ Petition No.22231 of 2019 Petitioner-Abdul Hasnain Siddiqui DIN-06569473 1. FMC Satya Projects Pvt Ltd Private 09.05.2013 Struck off 84.Writ Petition No.22387 of 2019 Petitioner-Vijay Kumar Gupta DIN-02118646 1. Vamdev Soft Solutions Pvt Ltd Private 15.09.2005 Struck off 85. Writ Petition No.22395 of 2019 Petitioner-Manisha Vaisli DIN-035 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic 04.09.1995 Active 3. Kamakhya Steels Pvt Ltd Private 09.08.1995 Active 4. Shyam Shyama Jaggery Cold Storage Pvt Ltd Private 14.01.2005 Active 5. Shahji Vishnu Swarup and Sons Contractors Pvt Ltd Private 24.05.2010 Active 96. Writ Petition No.23905 of 2019 Petitioner-Amit Pratap Singh DIN-01986026 1. Real Value Financial Services Pvt Ltd Private 19.01.2012 Struck off 2. Real Value Infrabuild Pvt Ltd Private 19.04.2012 Struck off 3. Real Value IT Solutions Pvt Ltd Private 11.04.2012 Struck off 4. N. J. Financial Consultants and Developers Ltd Public 30.05.2008 Active 97. Writ Petition No.23916 of 2019 Petitioner-1 Pawan Agarwal DIN-00716847 1. Agrawal's Lifeline Hospital and Trauma Centre Pvt Ltd Private 24.08.2004 Active 98. Writ Petition No.23932 of 2019 Petitioner-Sarita Mishra DIN-02899301 1. Aparna Consumer Services Pvt Ltd Private 01.04.2008 Active 2. A. R. Multiservices Pvt Ltd Private 18.02.2010 Struck off 99. Writ Petition No.23936 of 2019 Petitioner-Aparna Mishra DIN-02021652 1. Aparna Consumer Services Pvt Ltd Private 01.04.2008 Active 2. AABSadbhawana Hospital Pvt Ltd Private 26.03.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vate Ltd Private 21.12.1987 Struck off 109. Writ Petition No.33354 of 2019 Petitioner-1 Sajan Kapoor DIN-00989565 1. Malik Products Pvt Ltd Private 03.07.1997 Struck off 2. Malik Print and Pack Pvt Ltd Private 21.12.1987 Struck off Petitioner-2 Shweta Kapoor DIN-00989621 1. Malik Products Pvt Ltd Private 03.07.1997 Struck off 110. Writ Petition No.33355 of 2019 Petitioner-Mayank Mehra DIN-03368090 1. Corpseed Pvt Ltd Private 12.03.2018 Active 2. Ultiwise Consultants LLP - - Active 3. Anmol Civil Contractors Pvt Ltd Private - Active 4. Reverence Services Pvt Ltd Private - Struck off 111. Writ Petition No.33595 of 2019 Petitioner-1 Aditya Narayan Pande DIN-02099706 Petitioner-2 Usha Pandey DIN-01244842 1. Adicon Projects Pvt Ltd Private 14.02.2003 Struck off 112.Writ Petiton No.35065 of 2019 Petitioner-Kamla Ram Sharma DIN-06663572 1. Cygnet Construction Pvt Ltd Private 30.08.2013 Struck off 2. KV Shopgood Pvt Ltd Private - - 113. Writ Petition No.24942 of 2019 Petitioner-Sanjesh Yadav DIN-01873656 1. Etah Exports Pvt Ltd Private 26.05.1998 Struck off 2. Progressive Infra Developers Pvt Ltd Priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Welcome International Limited Public 04.06.2004 Struck off 2. Feast and Fizzy Hospitality Pvt Ltd Private 15.10.2018 Active 122. Writ Petition No.26021 of 2019 Petitioner-Shivam Barnwal DIN-06481328 1. Suprita Infraventures Pvt Ltd Private 01.07.2013 Struck off 123. Writ Petition No.26042 of 2019 Petitioner-1 Syed Naved Faisal DIN-00196316 1. Delta Garments Pvt Ltd Private 02.09.2011 Active 2. Qaiser Garments Pvt Ltd Private 06.06.2006 Active 3. Abeer Leather Pvt Ltd Private 06.06.2006 Active 4. Hasan Leather Pvt Ltd Private 03.01.2006 Struck off 5. Cosmos Eco Engineering Pvt Ltd Private 15.03.2014 Struck off 6. Singhal Electrical Control Pvt Ltd Private 12.08.1996 Active Petitioner-2 Nazma Begum DIN-00284911 1. Delta Garments Pvt Ltd Private 27.08.2004 Active 2. Runa Fashions Pvt Ltd Private 19.05.2011 Struck off 3. Cosmos Eco Engineering Pvt Ltd Private 15.03.2014 Struck off 4. Singhal Electrical Control Pvt Ltd Private 12.08.1996 Active Petitioner-3 Shekhar Singhal Dharampal DIN-01866504 1. Singhal Electrical Control Pvt Ltd Private 12.08.1996 Active Petitioner-4 Pravina Kumar DIN-06997 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1 Akhilesh Kumar Agarwal DIN-01049792 Petitioner-2 Vinod Kumar Agarwal DIN-00983933 1. Power Fabricators (India) Pvt Ltd Private 13.01.2006 Active 131. Writ Petition No.28829 of 2019 Petitioner-Ashok Kumar Yadav DIN-02640237 1. Maa Vindhyavasini Infrabuild Pvt Ltd Private 26.04.2012 Struck off 2. Amisha Polymers Pvt Ltd Private 21.05.2009 Active 132. Writ Petition No.29297 of 2019 Petitioner-1 Sanjiv Gupta DIN-00546539 1. Bankey Bihari Infratech Pvt Ltd Private 10.09.2010 Active 2. Radhey Shyam Infraproject Pvt Ltd Private 04.05.2011 Struck off Petitioner-2 Deepak Gupta DIN-00555302 1. Bankey Bihari Infratech Pvt Ltd Private 10.09.2010 Active 2. Radhey Shyam Infraproject Pvt Ltd Private 04.05.2011 Struck off 3. Paarola Developers Pvt Ltd Private 21.12.2009 Active 133. Writ Petition No.29986 of 2019 Petitioner-1 Kshitij Singh DIN-0654482 Petitioner-2 Rekha Singh DIN-06544833 1. Nanvag Informatics and Consultancy Services Pvt Ltd Private 29.04.2013 Struck off 2. Nanvag Infra and Hospitality Ventures Pvt Ltd Private 12.04.2013 Active 134. Writ Petition No.30053 of 2019 Petitioner-1 Ashwani Kumar Singh DIN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riveni Constructive Solutions Pvt Ltd Private 24.02.2016 Active 142. Writ Petition No.31698 of 2019 Petitioner-1 Praveen Sharma DIN-00877710 Petitioner-2 Sunita Sharma DIN-00877851 1. Prasunco Pharmaceuticals Pvt Ltd Private 30.01.2012 Struck off 143. Writ Petition No.31725 of 2019 Petitioner-1 Munni Devi Jaiswal DIN-02846625 Petitioner-2 Prem Chandra Jaiswal DIN-02039726 1. Speed Rollers Pvt Ltd Private 19.10.1994 Struck off Petitioner-2 Prem Chandra Jaiswal DIN-02039726 1. Hari Om Steel Pvt Ltd Private 12.07.1995 Active 2. Shakumbhari Alloys Steel Pvt Ltd Private 17.12.1999 Active 144. Writ Petition No.31845 of 2019 Petitioner-Naveen Tripathi DIN-03326958 1. Tristar Infotech Pvt Ltd Private 03.09.2010 Struck off 2. Pranav Softech Pvt Ltd Private 07.01.2011 Active 145. Writ Petition No.31923 of 2019 Petitioner-Dinesh Kumar Agrawal DIN-03520529 1. Triveni Infraestate Pvt Ltd Private 03.09.2010 Active 2. Amity Infra Developers Pvt Ltd Private 13.05.2011 Active 3. D Kumars Infraprojects Pvt Ltd Private 29.07.2011 Active 4. Triveni Infracity Pvt Ltd Private 04.01.2013 Active 5. Charmswood Infraestate Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Care Hospital Pvt Ltd Private 31.01.2013 Active 158. Writ Petition No.36608 of 2019 Petitioner-1 Chandra Bhushan Pandey DIN-05220438 Petitioner-2 Neelam DIN-05225961 1. RJT Mass Communication Pvt Ltd Private 19.07.2018 Active 2. RGC Institutional (India) Pvt Ltd Private 23.03.2012 Struck off 159. Writ Petition No.38175 of 2019 Petitioner-1 Pushpendra Kumar Awasthi DIN-06494157 Petitioner-2 Dhirendra Bahadur Singh DIN-06494165 Petitioner-3 Sameer Akhtar DIN-06494177 1. Edcora Bussiness Management Pvt Ltd Private 14.06.2017 Active 2. Sykas Systems and Software Pvt Ltd Private 25.02.2013 Struck off 160.Writ Petition No.19282 of 2019 Petitioner-1 Krishna Kumar Bhardwaj DIN-06447710 Petitioner-2 Jyoti Bhardwaj DIN-06738372 1. Bhardwaj Infracon Pvt Ltd Private 26.12.2012 Struck Off 11. We may also notice that in some writ petitions, vires of Section 164 (2) of Act, 2013 has been challenged on the ground that it is arbitrary and discriminatory, violative of Articles 14 and 19 (1) (g) of the Constitution of India. 12. Before looking into rival submissions it would be appropriate to have a bird-eye view of the relevant Statutes, appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) persons who, having been formerly in the employment of the company, were members of the company while in that employment and have continued to be members after the employment ceased; and (c) prohibits any invitation to the public to subscribe for any shares in, or debentures of, the company; (d) prohibits any invitation or acceptance of deposits from persons other than its members, directors or their relatives. Provided that where two or more persons hold one or more shares in a company jointly, they shall, for the purposes of this definition, be treated as a single member; (iv) "public company" means a company which- (a) is not a private company; (b) has a minimum paid-up capital of five lakh rupees or such higher paidup capital, as may be prescribed; (c) is a private company which is a subsidiary of a company which is not a private company." (emphasis added) 16. Chapter II Part VI of Act, 1956 dealt with Directors. Section 252 provided minimum number of Directors in a 'Public Company' and other Companies and it read as under : "Minimum number of directors.-(1) Every public company (other than a public company which has become such by virtue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application under section 266A, allot a Director Identification Number to an applicant, in such manner as may be prescribed. 266C.Prohibition to obtain more than one Director Identification Number.- No individual, who had already been allotted a Director Identification Number under section 266B, shall apply, obtain or possess another Director Identification Number. 266D. Obligation of director to intimate Director Identification Number to concerned company or companies.-Every existing director shall, within one month of the receipt of Director Identification Number from the Central Government, intimate his Director Identification Number to the company or all companies wherein he is a director. 266E. Obligation of company to inform Director Identification Number to Registrar.-(1) Every company shall, within one week of the receipt of intimation under section 266D, furnish the Director Identification Number of all its directors to the Registrar or any other officer or authority as may be specified by the Central Government. (2) Every intimation under sub-section (1) shall be furnished in such form and manner as may be prescribed. 266F. Obligation to indicate Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... call in respect of shares of the company held by him, whether alone or jointly with others, and six months have elapsed from the last day fixed for the payment of the call; or (f) an order disqualifying him for appointment as director has been passed by a Court in pursuance of section 203 and is in force, unless the leave of the Court has been obtained for his appointment in pursuance of that section; (g) such person is already a director of a public company which,- (A) has not filed the annual accounts and annual returns for any continuous three financial years commencing on and after the first day of April, 1999; or (B) has failed to repay its deposit or interest thereon on due date or redeem its debentures on due date or pay dividend and such failure continues for one year or more: Provided that such person shall not be eligible to be appointed as a director of any other public company for a period of five years from the date on which such public company, in which he is a director failed to file annual accounts and annual returns under sub-clause (A) or has failed to repay its deposit or interest or redeem its debentures on due date or pay dividend referred to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod for which the account was last submitted and ending with a day which shall not precede the day of the meeting by more than six months, or in cases where an extension of time has been granted for holding the meeting under the second proviso to sub-section (1) of section 166, by more than six months and the extension so granted. (4) The period to which the account aforesaid relates is referred to in this Act as a " financial year "; and it may be less or more than a calendar year, but it shall not exceed fifteen months: Provided that it may extend to eighteen months where special permission has been granted in that behalf by the Registrar. (5) If any person, being a director of a company, fails to take all reasonable steps to comply with the provisions of this section, he shall, in respect of each offence, be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both: Provided that in any proceedings against a person in respect of an offence under this section, it shall be a defence to prove that a competent and reliable person was charged with the duty of seeing that the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than six months; (f) he fails to pay any call in respect of shares of the company held by him, whether alone or jointly with others, within six months from the last date fixed for the payment of the call, unless the Central Government has, by notification in the Official Gazette, removed the disqualification incurred by such failure; (g) he absents himself from three consecutive meetings of the Board of directors, or from all meetings of the Board for a continuous period of three months, whichever is longer, without obtaining leave of absence from the Board; (h) he (whether by himself or by any person for his benefit or on his account), or any firm in which he is a partner or any private company of which he is a director, accepts a loan, or any guarantee or security for a loan, from the company in contravention of section 295; (i) he acts in contravention of section 299; (j) he becomes disqualified by an order of Court under section 203; (k) he is removed in pursuance of section 284; or (l) having been appointed a director by virtue of his holding any office or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 1 (3) provides that Section 1 itself shall come into force at once and remaining provisions of Act, 2013 shall come into force on such dates as Central Government may, by notification in Official Gazette, appoint and different dates may be appointed for different provisions. For giving effect to the provisions of Act, 2013, different notifications were issued from time to time and a chart showing enforcement of various provisions, details of notifications and date of enforcement is given as under :- Sl No. Date of notification Date of publication in Gazette Date of enforcement Section(s) 1. 12.09.2013 12.09.2013 12.09.2013 2(1), (3) to (6), (8) to (12), (14) to (22), (24) to (28), (29), (30), (32) to (40), (43) to (46), (49) to (61), (63) to (66), (67), (68) to (82), (84), (86), to (95), 19, 21 to 25, 29 to 40, 44, 45, 49 to 51, 57 to 60, 65, 69, 70, 86, 91, 100, 102 to 107, 111 to 116, 127, 133, 161 to 163, 176, 180 to 183, 185, 192, 194, 195, 202, 379, 382, 383, 386, 394, 405, 407 to 414, 439, 443 to 453, 456 to 463, 467 to 470 2. 27.02.2014 28.02.2014 01.04.2014 135 and Schedule VII 3. 26.03.2014 27.03.2014 01.04.2014 2 (2), (7), (13), (31), (41), ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Section 61, sub-sections (4) to (6) of Section 62, sub-sections (9) to (11) of Section 71, 75, 97 to 99, subsection (4) of Section 119, 130, 131, second proviso to sub-section (4) and sub-section (5) of Section 140, subsection (4) of Section 169, 213, subsection (2) of Section 216, 218, 221, 222, sub-section (5) of Section 224, Sections 241, 242 [except clause (b) of subsection (1), clauses (c) and (g) of subsection (2), 243, 244 and 245, reference of word 'Tribunal' in sub-section (2) of Section 399, 415 to 433, sub-sections (1) (a) and (b) of Section 434, sub-section (2) of Section 434, 441, 466 8. 05.09.2016 05.09.2016 07.09.2016 124, sub-sections (1) to (4), (6) [with respect to the manner of administration of the Investor Education and Protection Fund] and (8) to (11) of Section 125 9. 09.09.2016 09.09.2016 09.09.2016 227, clause (b) of sub-section (1) of Section 242, clauses (c) and (g) of subsection (2) of Section 242, 246 and Sections 337 to 341 (to the extent of their applicability for Section 246) 10. 07.12.2016 07.12.2016 15.12.2016 Clause (23) of Section 2, Clause (c) and (d) of sub-section (7) of Section 7, Subsection (9) of Section 8, 48, 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 172. Section 153 to 159 deal with issue of Director Identification Number (i.e. DIN). Section 153 provides that every individual, intending to be appointed as director of a company, shall make an application for allotment of DIN to the Central Government in such form and manner and along with such fees as may be prescribed. Section 154 makes it obligatory upon Central Government to allot DIN within one month from receipt of application under Section 153 to the person applying for the same. Section 155 prohibits more than one DIN to any individual and says that no individual who has already been allotted DIN under Section 154, shall apply for, obtain or possess another DIN. Vide Section 156, every existing Director is under obligation to intimate his DIN to the company or all the companies wherein he is a director, after receipt of DIN from Central Government. Similarly, Section 157 makes it obligatory upon Company to inform ROC of the Directors of companies. Obligation to indicate DIN is provided under Section 158. It says that every person or company, while furnishing any return, information or particulars, as are required to be furnished under Act, 2013, shall mention DIN in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidend declared and such failure to pay or redeem continues for one year or more, shall be eligible to be re-appointed as a director of that company or appointed in other company for a period of five years from the date on which the said company fails to do so. Provided that where a person is appointed as a director of a company which is in default of clause (a) or clause (b), he shall not incur the disqualification for a period of six months from the date of his appointment. (3) A private company may by its articles provide for any disqualifications for appointment as a director in addition to those specified in sub-sections (1) and (2): Provided that the disqualifications referred to in clauses (d), (e) and (g) of sub-section (1) shall continue to apply even if the appeal or petition has been filed against the order of conviction or disqualification." (Provisions shown in bold were amended by Act 1 of 2018 w.e.f. 07.05.2018) 32. Broadly Section 164 of Act, 2013 is not only similar to Section 274 of Act, 1956 but a bit wider. Disqualification added in Section 274 (1) by insertion of Clause (g) has been continued in Section 164 though framed in slightly different lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder subsection (4), before the expiry of the period specified under Section 403 with additional fees, the company shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to five lakhs rupees and every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to six months or with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees, or with both." (emphasis added) 36. Section 96 of Act, 2013 provides for Annual General Meeting (AGM) and says that in each year, in addition to any other meeting, a general meeting as its Annual General Meeting shall be held by Company and there shall not be a gap of more than fifteen months between two Annual General Meetings of the Company. 37. Section 137 of Act, 2013 provides for filing of Financial Statements by a Company with ROC. Here also non-compliance of filing of Financial Statements under sub-section(1) or (2), has been declared to be an offence punishable with fine for the Company, and, Managing Director and Chief Financial Officer of the Company or Director of the Company are punishable with fine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviso shall be met if the holding Indian company files such unaudited financial statement along with a declaration to this effect and where such financial statement is in a language other than English, along with a translated copy of the financial statement in English. (2) Where the annual general meeting of a company for any year has not been held, the financial statements along with the documents required to be attached under sub-section (1), duly signed along with the statement of facts and reasons for not holding the annual general meeting shall be filed with the Registrar within thirty days of the last date before which the annual general meeting should have been held and in such manner, with such fees or additional fees as may be prescribed. (3) If a company fails to file the copy of the financial statements under sub-section (1) or sub-section (2), as the case may be, before the expiry of the period specified, the company shall be punishable with fine of one thousand rupees for every day during which the failure continues but which shall not be more than ten lakh rupees, and the managing director and the Chief Financial Officer of the company, if any, and, in the abse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvicted by a court of any offence, whether involving moral turpitude or otherwise and sentenced in respect thereof to imprisonment for not less than six months; Provided that the office shall not be vacated by the director in case of orders referred to in clauses (e) and (f)- (i) for thirty days from the date of conviction or order of disqualification; (ii) where an appeal or petition is preferred within thirty days as aforesaid against the conviction resulting in sentence or order, until expiry of seven days from the date of which such appeal or petition is disposed of; or (iii) where any further appeal or petition is preferred against order or sentence within seven days, until such further appeal or petition is disposed of. (g) he is removed in pursuance of the provisions of this Act; (h) he, having been appointed a director by virtue of his holding any office or other employment in the holding, subsidiary or associate company, ceases to hold such office or other employment in that company. (2) If a person, functions as a director even when he knows that the office of director held by him has become vacant on account of any of the disqualifications specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed to consider rival submissions advanced in these writ petitions. 44. The First Question, up for consideration is, "What shall be the financial years, which can be considered for the purpose of disqualification under Section 164 (2) of Act, 2013, which came into force on 01.04.2014?" 45. "Financial Year" has been defined under Section 2(41) of Act, 2013 and it also came into force w.e.f. 01.04.2014. It reads as under : "2(41) "financial year", in relation to any company or body corporate, means the period ending on the 31st day of March every year, and where it has been incorporated on or after the 1st day of January of a year, the period ending on the 31st day of March of the following year, in respect whereof financial statement of the company or body corporate is made up : Provided that on an application made by a company or body corporate, which is a holding company or a subsidiary or associate company of a company incorporated outside India and is required to follow a different financial year for consolidation of its accounts outside India, the Tribunal may, if it is satisfied, allow any period as its financial year, whether or not that period is a year: Provided f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould cover Financial Year 2014-15 and thereafter. Therefore, for the purpose of Section 164 (2) (a) of Act, 2013, in our view, three Financial Years relevant for attracting Section 164 (2) (a) of Act, 2013, would commence from Financial Year 2014-15 and onwards and not prior thereto. 49. We find that considering a similar issue, Gujarat High Court in Gaurang Balvantlal Shah Vs. Union of India, 2019 GLH (1) 444; Madras High Court in Bhagavan Das Dhananjaya Das Vs. Union of India and Anr., (2018)6 MLJ 704; Karnataka High Court in Yashodhara Shroff vs. Union of India, (2019)155 SCL 299; and Telangana High Court in Venkata Ramana Tadiparthi vs. Union of India (Writ Petition No.5422 of 2019) decided on 18.07.2019, have also taken same view. We also find that a Division Bench of this Court (at Lucknow Bench) in Mohd. Tariq Siddiqui and others Vs. Union of India and others (Misc Bench No.16173 of 2019 and other connected matters) decided on 15.10.2019 has followed the view taken by Gujarat High Court in Gaurang Balvantlal Shah (supra) and has also said in para 6 of the judgment that besides Madras High Court similar view has been taken by Madhya Pradesh High Court also. Since Division Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merited." 52. Since Division Bench of this Court at Lucknow Bench has already taken a view concurring with decisions of Gujarat, Madras and Madhya Pradesh High Courts holding that to attract Section 164(2)(a), it is the Financial Statement/Annual Return of Financial Year 2014-15 and onwards which is relevant and not earlier thereto, which means that a different view to the view taken by Delhi High Court has been expressed by this Court. Hence, we find no reason not to accept and respectfully follow the view taken by Division Bench of this Court, hence we reject contention of learned Additional Solicitor General of India advanced on the foundation of judgment in Mukut Pathak (supra) passed by Delhi High Court. 53. The Second Question is "Whether Section 164 (2) of Act, 2013 is arbitrary and discriminatory, hence violative of Articles 14 and 19 (1)(g) of the Constitution of India or not"? 54. As we have already noticed, Section 164 (2) of Act, 2013 broadly is similar as Section 274 (1) of Act, 1956. The two conditions of disqualification namely, non filing of Annual Returns and Financial Statements and non return of deposit and non payment of dividends etc in due time, were inser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions provided by insertion of Clause (g) in subsection (1) of Section 274 of Act, 1956. It is submitted that default of Company in filing requisite document with ROC or non payment of deposit, dividends etc within prescribed time is a fault on the part of Company and for that purpose a Director cannot be made responsible, but we cannot ignore the fact that Company is a juristic personality. It has no physical existence and therefore, it is managed by Board of Directors, who are individual natural persons. The disobedience on the part of Company or incapacity in payment of certain dues as described in Section 274 (1)(g) (B) of Act, 1956 is bound to occur only when natural persons responsible for its management have failed to manage it effectively and properly. Defiance and default will also occur on the part of Company when persons responsible for management would fail in compliance of statutory duties. Therefore, while holding the Company responsible and to face consequences of such violation, Legislature has found it appropriate to hold the person responsible for its management i.e. Director to suffer certain consequences, which cannot be said to be unreasonable or per se arbitrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed by a Director concerned, the disqualification would stand attracted. Similar is the position in respect of Section 167(1) (a), hence, we find no reason to hold that principles of natural justice must be read in Sections 164(2) (a) and 167(1) (a) before attracting consequences. 61. However, the matter is not so simple and will not end here. There is another facet under which aforesaid provisions have to be examined. 62. Disqualification under Section 164(2) (a) of Act 2013 would operate only when there is a failure of non filing Financial Statements or Financial Returns for a continuous period of three Financial Years. Hence, question of fact which would arise in every case, whether there is any such failure or not and that too for the period as contemplated in the aforesaid provision. Similarly to attract Section 164 (2) (b) of Act, 2013 it has to be shown that there is failure on the part of company in payment of dividends, deposits, interests etc. This is again a question of fact. Unless these facts are shown to exist or have occurred, it cannot be doubted that disqualification under Section 164 (2) of Act, 2013, shall not be attracted. 63. In all these writ petitions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 248 of Act, 2013. 69. Section 248 of Act, 2013 confers power upon ROC, where it has reasonable cause to believe that a company has failed to commence its business within one year of its incorporation or is not carrying on any business or operation for a period of two immediately preceding Financial Years and has not made any application within such period for obtaining status of a dormant company under Section 455, to serve notice upon Company and all its Directors giving them opportunity to make representation to striking off name of such company from the register of companies and publish notice in the official gazette. Section 248 of Act, 2013 reads as under : "248. Power of Registrar to remove name of company from register of companies.-(1) Where the Registrar has reasonable cause to believe that- (a) a company has failed to commence its business within one year of its incorporation, or (b) the subscribers to the memorandum have not paid the subscription which they had undertaken to pay within a period of one hundred and eighty days from the date of incorporation of a company and a declaration under sub-section (1) of Section 11 to this effect has not been fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y: Provided that notwithstanding the undertakings referred to in this sub-section, the assets of the company shall be made available for the payment or discharge of all its liabilities and obligations even after the date of the order removing the name of the company from the register of companies. (7) The liability, if any, of every director, manager or other officer who was exercising any power of management, and of every member of the company dissolved under sub-section (5), shall continue and may be enforced as if the company had not been dissolved. (8) Nothing in this section shall affect the power of the Tribunal to wind up a company the name of which has been struck off from the register of companies." (emphasis added) 70. Section 248 of Act, 2013, therefore, does not talk of disqualification, which a Director would suffer so as to incur disqualification under Section 164 (2) read with Section 167 of Act, 2013. Thus the mere fact of striking off of a Company by itself can not prejudice a Director for the purpose of Sections 164 (2) and 167 (1) of Act, 2013. 71. Non application of mind on the part of ROC is writ large from the fact that some petitioners are Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2013 has been considered, applied and followed by ROC in publishing orders disqualifying petitioners and suspending their DIN and DSC. We have already held that to attract Section 164 (2) (a) of Act, 2013, Financial Year would commence from 2014-15 and not 2013-14. However, what has been pleaded in the counter affidavit of W.P.-I, if applied in all other cases, apparently it can be said that for only two valid Financial Years there is failure in submission of Annual Statements etc and that being so, requirement under Section 164 (2) (a) of Act, 2013, is not satisfied and, hence, declaration of petitioners-Directors as disqualified to be Director of all companies, is erroneous. 74. Thus, we reiterate that the fact whether there is such failure as contemplated and provided by Section 164(2)(a) of Act, 2013 to attract disqualification thereunder and also to incur consequences provided under Section 167(1) (a) of Act, 2013, it has to be established, as a matter of fact, that there is such failure. For this purse, in our view, a notice would be necessary to find out whether the alleged disqualification which according to ROC has been incurred by any Director, is an undisputed fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d person was necessary to be given by ROC. We, therefore, answer Question-3 accordingly. 78. The Fourth Question is "Whether there is any provision empowering Registrar of Companies to de-activate "DIN" of petitioners who were allotted DIN under Section 154 of Act, 2013?" 79. We need not go into this aspect in detail for the reason that various High Courts have examined relevant statutory provisions on this aspect and have taken a common view that there is no provision which empowers ROC to de-activate DIN, only on the ground that a Director has incurred disqualification under Section 164(2) (a) or his Office has become vacant under Section 167(1) (a). In this regard relevant extract of the judgments of different High Courts may be reproduced as under : (1) Delhi High Court's judgment in Mukut Pathak (supra), paragraphs 106, 108, 109 and 110: "106. Neither any of the provisions of the Companies Act nor the Rules framed thereunder stipulate cancellation or deactivation of DIN on account of a director suffering a disqualification under Section 164(2) of the Act. It is relevant to note that Rule 11 of the Company (Appointment and Qualification of Directors) Rules, 2014 was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of DIN to the Central Government in such form and manner as may be prescribed. Section 154 states that the Central Government shall within one month from the receipt of the application under Section 153 allot a DIN to an applicant in such manner as may be prescribed. Section 155 prohibits any individual, who has already been allotted a DIN under Section 154 from applying for or obtaining or possessing another DIN. Rules 9 and 10 of the said Rules of 2014 prescribe the procedure for making application for allotment and for the allotment of DIN, and further provide that the DIN allotted by the Central Government under the said Rules would be valid for the lifetime of the applicant and shall not be allotted to any other person. 30. Rule 11 provides for cancellation or surrender or deactivation of DIN. Accordingly, the Central Government or Regional Director or any authorized officer of Regional Director may, on being satisfied on verification of particulars of documentary proof attached with an application from any person, cancel or deactivate the DIN on any of the ground mentioned in Clause (a) to (f) thereof. The said Rule 11 does not contemplate any suo motu powers either with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. This Court (Lucknow Bench) also in Mohd. Tariq Siddiqui (supra) been quoted in ex tensio, the view taken by Gujarat High Court and has allowed writ petition. Operative part of judgment in para 7 reads as under : "7. In view of above, the writ petitions for challenge to the deactivation of the Director Identification Number are allowed. It was de-activated on account of dis-qualification in one company effecting Director Identification Number for the other companies. The opposite parties are directed to activate the Director Identification Number of use for other company. The opposite parties would however be at liberty to take legal action against the petitioners for any statutory default or non-compliance of the provisions of the Act of 2013. It would obviously be in accordance with the provisions of law." 81. Question-4 is, therefore, answered in favour of petitioners. We hold that in absence of any provision to deactivate DIN of petitioners if they have incurred disqualification under Section 164 of Act, 2013, the action of respondents and in particular of ROC, in deactivating DIN of petitioners, cannot be sustained. 82. The above discussion leads to the consequence that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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