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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 ..... al Year. Such Annual Return shall be signed by Director and the Company Secretary. Where there is no Company Secretary, it shall be signed by a Company Secretary in practice. Sub-section (4) of Section 92 makes it obligatory for every Company to file Annual Return with ROC within sixty days from the date on which Annual General Meeting (AGM) is held or where no AGM is held in any year within sixty days from the date on which AGM should have been held together with the statement specifying the reasons for not holding the AGM. The filing of Annual Returns and Financial Statements are obligatory, non-compliance thereof is punitive and penal is nature. Therefore, Legislature has found it expedient to include violation of said provisions as one of the disqualification of a person to be a Director of such Company. 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? - HELD THAT:- A perusal of Section 2(41) of Act, 2013 shows that for a provision, which came into force on 01.04.2014, 'Financial Year' which ended on 31.03.2014 will not be relevant, inasmuch as, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or if disputed, opportunity to concerned person has to be given to establish otherwise - it cannot be said that continuance of a person as Director though under law he has suffered disqualification and he knows it, and office of Director has become vacant, will remain unpunished but he has to suffer further penalty also. It is, however, true that even this consequence will arise only when basic facts of incurring disqualification are established. This has to be established by an Authority who is responsible for monitoring and ensuring compliance of various provisions of Statute. A complete embargo on principles of natural justice would not be justified, particularly when to attract disqualification and consequences under aforesaid provisions, certain basic facts, whether exist or not, had to be established and for this purpose at least a notice to concerned person was necessary to be given by ROC. Whether there is any provision empowering Registrar of Companies to de-activate DIN of petitioners who were allotted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Ashutosh Srivastava, Jyotsna Srivastava, Smt. Neelu Devi, Girish Kumar Srivastava, Suchit Tandon, Gyanedra Kumar Dwivedi, Raj Kumari Devi, N.K.Chaterjee, Praveen Kumar Srivastava, Archit Mehrotra, Bhanu Prakash Singh, Yogendra Kumar, Anupam Kumar, Varun Kumar Srivastava, Ankur Goyal, Anita Srivastava, Sandeep Kumar Srivastava, Neeru Devi, Joytsana Srivastava, Manu Vardhana, Vinay Kumar Singh, S.K. Srivastava, Ishan Shishu, Amrish Sahai, Narendra Kumar Chatterjee, Shashi Prakash Rai, Ajit Kumar Srivastava, Girish Kumar Srivastava, Raman S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 And Another, Deepak Kumar Maheshwari, Vipin Kumar Chaudhary, Vishnu Sharma, Ashish Tripathi, Alok Singh, Sayeed Khan, Syed Mohd Iqbal, Vipin Sarawat, Shashank Jain, Hariom Dixit, Amit Kumar, Anil Kumar Gupta, Suresh Kumar Sahu, Anurag Yadav, Raj Narain Singh, Vijay Shanker Pandey, Chanpreet Singh, Farazur Rahman, Sumitra, Ankur Mittal, Gopal Das Agarwal, Rajendra Singh, Gaurav Agarwal, Brijendra Kumar Sarivastava, Rajeev Bhatnagar, Shahin Anees, Neeraj Verma, Anjani Kumar, Nitin Sinha, Som Kumar Mittal, Ajit Kumar, Abhay Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinafter 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 learned counsel appearing in all these writ petitions for respective parties, all these petitions have been heard together and are being decided by this common judgment. 3. For the purpose of delving into pleadings and facts, with consent of parties, we have taken Writ Petition No.12498 of 2019 (Jai Shankar Agrahari vs. Union of India and another) as the leading 'writ petition' and this writ petition hereinafter would be referred to as WP-I . 4. W.P.-I has been filed by sole petitioner Jai Shankar Agraha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied 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 earlier events or transactions i.e. prior to 01.04.2014, amounts to making i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 is a complete failure on the part of petitioner to comply with Rule 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Agarwal Infratowers Pvt Ltd Private 14.10.2012 Active 4. Best and Bright Property Pvt Ltd Private 12.05.2011 Active 5. Peerless Properties Pvt Ltd Private 23.05.2011 Active 6. Blue Strawberry Business Solutions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 14.02.2005 Struck Off 2. Tushina Telecommunications Private Limited Private 26.09.1997 Struck Off 3. Oriental Diesels and Engineering Company Private Limited Private 09.09.1999 Active 4 . Writ Petition No.43177 of 2018 Petitioner-1. Avinash Singh DIN-02888460 Petitioner-2. Atul Singh DIN-02921472 1. Sheetal Infraventures Private Limited Private 23.08.2011 Struck off 5. Writ Petition No.1189 of 2019 Petitioner- Kuldeep Singh DIN-03391328 1. Shri Sanwalia Ji Home Solutions Pvt Ltd Private 10.09.2010 Struck off 2. Shri Sanwalia Ji Home Destination Pvt Ltd Private 18.10.2013 Active 3. Omnis Lifec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -05197675 1. Veera Infrahome Private Limited Private 06.12.2012 Struck off 2. One Place Infrastructures Pvt Ltd Private 01.01.2013 Active 3. O. P. Investorwala Services Pvt Ltd Private 24.06.2013 Active 4. One Place World Construction Pvt Ltd Private 06.06.2013 Active 5. One Place Automobiles Pvt Ltd Private 01.01.2014 Active 6. One place Global Trade Solutions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Protostar Infraestates Pvt Ltd Private 16.02.2012 Active 3. Protostar Realty Pvt Ltd Private 10.11.2015 Active 13.Writ Petition No.12739 of 2019 Petitioner-1 Krishna Chandra Gupta DIN-02464827 1. Shyambihari Polyprint Private Limited Private 15.07.2009 Struck off 2. Nitin Buildcon Pvt Ltd Private 19.11.2011 Active 3. Gomti Industries India Pvt Ltd Private 02.03.2012 Active 4. Him Ketchin India Pvt Ltd Private 17.02.2009 Active 5. Maa Vidyavati Learning Pvt Ltd Private 14.09.2010 Active 6. Greenberry Nandini RKG Pvt Ltd Priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Dynamic Commercial Ltd Public 30.03.2013 Active 8. Devon Viniyog Pvt Ltd Private 15.09.2004 Active 9. M.P. Singh Memorial Healthcare Pvt Ltd Private 30.11.2007 Active 10. M. P. Singh Project Pvt Ltd Private 30.03.2013 Active 11. Venus Cements Ltd Public 30.03.2011 Active 12. Avi-Aru Infrastructure Pvt Ltd Private 30.03.2013 Active 13. Arunavi Infrastructure Pvt Ltd Private 30.03.2013 Active 16. Writ Petition No.12935 of 2019 1. Rajesh Ahuja DIN-02168327 2. Ashok Kumar Gupta DIN-00040553 1. Force Solar Power Private Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive Petitioner-2. Ravi Bali DIN-02729149 1. Noble Career Solutions Private Limited Private 16.09.2009 Struck off 2. Riviera Buildtech Pvt Ltd Private 12.03.2010 Active 3. BCN Media Pvt Ltd Private 19.08.2009 Active 4. DDC Broadband Pvt Ltd Private 29.09.2017 Active 5. Ocean Apartments (India) Pvt Ltd Private 24.12.2013 Active 6. Bali Net Com Pvt Ltd Private 08.07.2015 Active 19. Writ Petition No.13593 of 2019 Petitioner- Deepak Kumar Maheshwari DIN-00983837 1. Mahesh Carpets Exports Private Limited Private 06.03.1991 Struck off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35406 1. Achievers Edupartners Pvt Ltd Private 05.07.2011 Struck off 2. Whetstone Marketing Pvt Ltd Private 06.06.2011 Active 3. Palash Infratech Pvt Ltd Private 19.11.2012 Active 25.Writ Petition No.17405 of 2019 Petitioner-Syed Mohd Iqbal DIN-02811256 1. Four Seasons Enterprises Pvt Ltd Private 23.10.2009 Active 2. Transglobal Computer Education Institute Pvt Ltd Private 23.04.2013 Struck off 26. Writ Petition No.17501 of 2019 Petitioner-Vipin Sarawat DIN-05189282 1. Manhattan Donex Buildtech Pvt Ltd Private 12.10.2012 Struck off 2. Manhattan Infrabuild Pvt L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Manhattan Infracon Pvt Ltd Private 15.02.2012 Struck off 4. Kingson Infradevelopers LLP LLP - Active 5. Maniere Home LLP LLP - Active 6. Rainbow Realcon Pvt Ltd Private - Active 7. Tripleplayer Telecom Pvt Ltd Private - Active 8. Pratistha Promoters Pvt Ltd Private - Active 9. Pitamber Promotors Pvt Ltd Private - Active 10. JRS Conbuild Pvt Ltd Private - Active 11. Panchsheel Infrapromoters Pvt Ltd Private - Active 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Private 03.10.2012 Active 4. Rasa Infratech Pvt Ltd Private 22.04.2013 Active 5. Rudi Infotech Solutions Pvt Ltd Private 23.08.2012 Struck off 6. Rasa Telecommunication Services Pvt Ltd Private 12.08.2013 Struck off 33. Writ Petition No.17649 of 2019 Petitioner -Raj Narain Singh DIN-02103769 1. Health Care Home Appliances Pvt Ltd Private 06.09.2011 Struck off 2. Shivnarayan Developers Pvt Ltd Private 14.05.2008 Active 34. Writ Petition No.17652 of 2019 Petitioner-1 Vijay Shaker Pandey DIN-05340852 1. City Infradestination Pvt Ltd Private 22.01.2013 Struck off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. SFS Infra Housing Projects Pvt Ltd Private 25.02.2016 Active Petitioner-3 Neelam Sajid DIN07117015 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 37. Writ Petition No.17834 of 2019 Petitioner-Sumitra DIN-06652272 1. Indrashakti Human Resource Services Pvt Ltd Private 17.09.2010 Active 2. Dotnet Sales and Marketing Pvt Ltd Private 06.12.2010 Struck off 38. Writ Petition No.17843 of 2019 Petitioner-Ankur Mittal DIN- 01988340 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Active 14. Pendant Inframart Pvt Ltd Private 09.04.2012 Active 15. Kaishori Marketing Pvt Ltd Private 18.05.2010 Active 16. Jeevan Vincom Pvt Ltd Private 17.05.2010 Active 17. Jupiter Tradelinks Pvt Ltd Private 22.08.2008 Struck off 40.Writ Petition No.17969 of 2019 Petitioner-Rajendra Singh DIN-02482087 1. RRD Infrapromoters Pvt Ltd Private - Active 2. RRC Infrapromoters Pvt Ltd Private - Active 3. RRB Infrapromoters Pvt Ltd Private - Active 4. RRA Infrapromoters Pvt Ltd Private - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 10.07.2012 Active 16. Koteshwar Infrastructure Pvt Ltd Private 29.06.2012 Active ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22.05.2006 Active 13. Rosebud Dwelling Pvt Ltd Private 29.06.2012 Active 14. Toronto Developers Pvt Ltd Private 28.08.2012 Active 15. Yamuna Infrabuildcon Pvt Ltd Private 24.11.2008 Struck off 16. Babylon Infraventures Pvt Ltd Private 29.06.2012 Active 17. Blue Nile Infratech Pvt Ltd Private 09.04.2012 Active 18. Caramel Properties Pvt Ltd Private 28.08.2012 Struck off 19. Bricks Ventures Pvt Ltd Private 29.02.2012 Active 42.Writ petition No.18052 of 2019 Petitioner-Brijendra Kumar Srivatava DIN-00270862 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Active Petitioner-2 Sangeeta Gupta DIN-01196740 1. Raadhey Krishnaa Infracorp Pvt Ltd Private 07.05.2013 Struck off 2. Raadhey Krishnaa Retail (India) Pvt Ltd Private - Active 3. Shree Raadhey Krishnaa Inframart Retail Pvt Ltd Private - Active 4. Shree Raadhey Krishnaa Holdings Pvt Ltd Private - Active 5. Raadhey Krishnaa Homecon Pvt Ltd Private - Active 6. Raadhey Krishnaa Inframart Pvt Ltd Private - Active 7. Sajag Infrastructure and Builders India Pvt Ltd Private - Active 8. Udahai Colonisers Pvt L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 2. GCC Energy Pvt Ltd Private 28.06.2010 - 57. Writ Petition No.19930 of 2019 Petitioner-Chaitanya Agarwal DIN-06619985 1. Kaarya Business Solutions Pvt Ltd Private 01.08.2013 Struck off 2. Bankey Bihari Herbs Spices Pvt Ltd Private 25.03.2014 Active 58. Writ Petition No.20231 of 2019 Petitioner-1 Nikhil Kukreja DIN-06649387 Petitioner-2 Parry Kukreja DIN-06649401 1. Kukreja Polycot Pvt Ltd Private 07.06.2017 Under process of Striking off 2. Clara Petrochemicals Pvt Ltd Private 26.08.2013 Struck off 59. Writ Petition No.20252 of 2019 Petitioner-1 Chandra Mohan DIN-03373693 Petitioner-2 Ashok Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt Ltd Private 31.12.2009 Struck off 70. Writ Petition No.20987 of 2019 Petitioner-1 Padam Kumar Mittal DIN-03278902 Petitioner-2 Manoj Kumar Agarwal DIN-03286778 1. Rajasthaan Grain Pulses Pvt Ltd Private 19.03.2012 Active 2. Khatu Shyamji Agro Exim Pvt Ltd Private 02.12.2011 Struck off 71. Writ Petition No.20992 of 2019 Petitioner-Shiv Kumar Sarda DIN-00894667 1. Volgina Finvest Pvt Ltd Private 05.05.1997 Active 72. Writ Petition No.21180 of 2019 Petitioner-Nitin Chaturvedi DIN-00943939 1. Secure Transmission System Pvt Ltd Private 16.06.2004 Active 73. Writ Petition No.21214 of 2019 Petitioner-Mahesh Chand Agarwal DIN- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 15. Era Motels Ltd Public 21.06.2006 Active ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Health Care 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 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2075 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-03577990 1. Steem Placement and Consulting Services Pvt Ltd Private 18.10.2008 Active 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019 Petitioner-Mohd Arif DIN-05138765 1. Banaras Bone and Proteins Pvt Ltd Private 14.10.2004 Active 91. Writ Petition No.22877 of 2019 Petitioner-Kunwar Ambar Singh DIN-06617046 1. Srijankashi Infra Pvt Ltd Private 15.07.2013 2. Fly Smart Housing Pvt Ltd Private - Struck off 92. Writ Petition No.23107 of 2019 Petitioner-Rishabh Krishna Sachan DIN-05103501 1. Ayan Projects Pvt Ltd Private 13.09.2011 Active 2. Shreekrishna Contractors Pvt Ltd Private 21.10.2011 Struck off 93. Writ Petition No.23447 of 2019 Petitioner-1 Sharda Yadav DIN-00159754 Petitioner-2 Saroj Yadav DIN-01264577 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 Active 3. Aster Infraheights Pvt Ltd Private 03.02.2012 Struck off 4. Highvision Educations Pvt Ltd Private 23.06.2010 - 100. Writ Petition No.23987 of 2019 Petitioner-1 Karan Chand Jain DIN-00254315 Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -03328470 1. Rapid Matrimonial Services Pvt Ltd Private - Active 104. Writ Petition No.24618 of 2019 Petitioner-Mahaviri Devi DIN-06509677 1. BL Buildcon Private Ltd Private 22.04.2013 Active 2. K.R. Panwari Ice and Cold Storage Pvt Ltd Private 05.01.2006 Active 105.Writ Petition No.26529 of 2019 Petitioner-Sumit Verma DIN-02528970 1. Tanya Infratech Pvt Ltd Private 01.07.2011 Struck off 2. Ayush Ornaments Pvt Ltd Private 11.05.2009 Active 106. Writ Petition No.26775 of 2019 Petitioner-1 Anup Kumar Pachauri DIN-01900544 Petitioner-2 Santosh Sharma DIN-02573617 1. Sarswat Telecom Pvt Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Private 08.02.2011 Active 3. Kaiser Construction Engineers and Contractor Pvt Ltd Private 02.03.2015 Active 114. Writ Petition No.25079 of 2019 1. Shweta Dubey DIN-06756625 1. Avritti Retail Pvt Ltd Private 07.08.2013 Struck off 115. Writ Petition No.25120 of 2019 Petitioner-1 Laxmi Kant DIN-00674357 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Active 118.Writ Petition No.25462 of 2019 Petitioner-Dileep Singh DIN-01331664 1. Chahar Agricultural Equipments Pvt Ltd Private 12.03.2016 Active 2. Vardaan Infracontractors Pvt Ltd Private 21.06.2013 Struck off 3. Krishna Infratown Pvt Ltd Private 15.06.2012 Active 4. Shree Govind Infraestate Pvt Ltd Private 11.11.2010 Active 119. Writ Petition No.25646 of 2019 Petitioner-Vishesh Tyagi DIN-03547327 1. Real Heads Developers Pvt Ltd Private 20.06.2011 Struck off 2. Alpha Fit Institute Pvt Ltd Private 30.11.2015 Active 3. Legacy Housing Pvt Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-06997399 1. Singhal Electrical Control Pvt Ltd Private 12.08.1996 Active 124. Writ Petition No.26059 of 2019 Petitioner-1 Jitendra Kumar DIN-05271309 Petitioner-2 Nutan Rani DIN-07454896 1. Bran Eduvision Pvt Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.05.1997 Active 4. H.L. Films Pvt Ltd Private - Active 5. B. R. Alloys Pvt Ltd Private - Active 6. Navsheel Standard Constructions Pvt Ltd Private - Active 7. Dhanraksha Merchandise Pvt Ltd Private 26.03.2009 Struck off 8. Ganpati Commodeal Pvt Ltd Private - Active 9. Copcoan Vyapaar Pvt Ltd Private - Active Petitioner-2 Akhilesh Kumar Sahu DIN-00378990 1. Ashwani Agri Farms Pvt Ltd Private - Active 2. H.L. Agro Products Pvt Ltd Private - Active ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-00646965 Petitioner-2 Ratan Kumar Singh DIN-00767307 Petitioner-3 Ritu Singh DIN-00647005 Petitioner-4 Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truck off Petitioner-3 Bharat Parashar DIN-03266648 1. Vishwakarma Infrapromoters Pvt Ltd Private 11.10.2010 Struck off 2. Maa Kamakhya Infravision Pvt Ltd Private 07.07.2004 Active 138.Writ Petition No.31124 of 2019 Petitioner-Pankaj Rana DIN-01754418 1. A to Z Habitat Maintenance and Services Pvt Ltd Private 15.02.2011 Struck off 2. A to Z Mines Pvt Ltd Private 27.03.2012 Active 3. Gleaming Outlook Education Ltd Public 26.12.2013 Active 139. Writ Petition No.31177 of 2019 Petitioner-Amit Saxena DIN-06587556 1. A P Softserve Pvt Ltd Private 01.11.2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Pvt Ltd Private 24.11.2011 Struck off 146. Writ Petition No.31967 of 2019 Petitioner-Rajat Rajput DIN-05183084 1. Sugam Buildwell Pvt Ltd Private 31.01.2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Srijan Architects Pvt Ltd Private 18.02.2011 Active 2. Srijan Infrabuild Pvt Ltd Private 22.02.2011 Struck off 154. Writ Petition No.34582 of 2019 Petitioner-1 Kamal Balani DIN-02569186 Petitioner-2 Sunita Balani DIN-02576297 1. KDJB Carriers Pvt Ltd Private 27.03.2009 Under Process of striking off 2. Aries Telemedia Ventures Pvt Ltd Private 26.08.2013 Struck off 3. Aries Marketers Pvt Ltd Private 08.06.1995 Active 4. Divyam Liquors LLP - 28.03.2019 Active 155. Writ Petition No.35479 of 2019 Petitioner-Madhu Garg DIN-0026840 1. Arg Pipes Pvt Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the relevant Statutes, applicable to the issues raised in these petitions. 13. Earlier, Act, 1956 held the field. It was enacted to consolidate and amend laws relating to Companies and certain other associations. Company was defined under Section 2 (10) of Act, 1956 and read as under : (10) company means a company as defined in section 3 14. Similarly, the term 'Director' was defined under Section 2 (13) of Act, 1956 and read as under : (13) director includes any person occupying the position of director, by whatever name called. 15. Section 3 talked of Company , Existing Company , Public Company and Private Company and defined the above Companies as under : (i) company means a company formed and registered under this Act or an existing company as defined in clause (ii): (ii) existing company means a company formed and registered under any of the previous companies laws specified below:- (a) any Act or Acts relating to companies in force before the Indian Companies Act, 1866 (10 of 1866) and repealed by that Act; (b) the Indian Companies Act, 1866 (1006 1966); (c) the Indian Companies Act, 1882 ( 6 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Minimum number of directors.-(1) Every public company (other than a public company which has become such by virtue of section 43(A) shall have at least three directors: Provided that a public company having,- (a) a paid-up capital of five crore rupees or more; (b) one thousand or more small shareholders, may have a director elected by such small shareholders in the manner as may be prescribed. Explanation.-For the purpose of this sub-section small shareholders means a shareholder holding shares of nominal value of twenty thousand rupees or less in a public company to which this section applies. (2) Every other company shall have at least two directors. (3) The directors of a company collectively are referred to in this Act as the Board of directors or Board . (emphasis added) 17. Section 253 provided that only an individual shall be appointed as Director and nobody corporate, association or firm shall be appointed as Director of a Company. A proviso was inserted in Section 253 by Section 2 of Act 23 of 2006 w.e.f. 01.11.2006 and it provided that no person shall be appointed as Director of a Company unless he has been allotted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Director Identification Number.-Every person or company, while furnishing any return, information or particulars as are required to be furnished under this Act, shall quote the Director Identification Number in such return, information and particulars in case such return, information or particulars relate to the director or contain any reference of the director. 266G. Penalty for contravention of provisions of section 266A or section 266C or section 266D or section 266E.-If any individual or director, referred to in section 266A or section 266C or section 266D or a company referred to in section 266E, contravenes any of the provisions of those sections, every such individual or director or the company, as the case may be, who or which, is in default, shall be punishable with fine which may extend to five thousand rupees and where the contravention is a continuing one, with a further fine which may extend to five hundred rupees for every day after the first during which the contravention continues. Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic 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 clause (B). (2) The Central Government may, by notification in the Official Gazette, remove - (a) the disqualification incurred by any person in virtue of clause (d) of subsection (1), either generally or in relation to any company or companies specified in the notification; or (b) the disqualification incurred by any person in virtue of clause (e) of subsection (1). (3) A private company which is not a subsidiary of a public company may, by its articles, provide that a person shall be disqualified for appointment as a director on any grounds in addition to those specified in sub-section (1). (emphasis added) 20. The obligation to file Annual Accounts and Annual Returns was provided in Section 210 of Act, 1956. Sub-section 5 thereof declares that non-compliance of Section 210 shall be an offence on the part of any person being Director of a Company and he shall be punished with imprisonment for a term which may extend to six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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 this section were complied with and was in a position to discharge that duty: Provided further that no person shall be sentenced to imprisonment for any such offence unless it was committed willfully. (6) If any person, not being a director of the company, having been charged by the Board of directors with the duty of seeing that the provisions of this section are complied with, makes default in doing so, 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 no person shall be sentenced to imprisonment for any such offence unless it was committed willfully. 21. Similarly repayment of deposit or interest thereon or redemption of debentures or payment of dividend are obligatory under different provisions and violation thereof is also penal. By i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 other employment in the company he ceases to hold such office or other employment in the company (2) Notwithstanding anything in clauses (d), (e) and (j) of sub-section (1), the disqualification referred to in those clauses shall not take effect- (a) for thirty days from the date of the adjudication, sentence or order; (b) where any appeal or petition is preferred within the thirty days aforesaid against the adjudication, sentence or conviction resulting in the sentence, or order until the expiry of seven days from the date on which such appeal or petition is disposed of; or (c) where within the seven days aforesaid, any further appeal or petition is preferred in respect of the adjudication, sentence, conviction, or order, and the appeal or petition, if allowed, would result in the removal of the disqualification, until ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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), (42), (47), (48), (62), (83), (85), Explanation (d) of Clause (87), 3 to 6, 7 [Except sub-section (7)], 8 [except sub-section (9)], 9 to 13, 14, 15 to 18, 20, Clause (b) of subsection (1) and sub-section (2) of 23, sub-section (3) of 25, 26 to 28, subsection (3) of 33, Clause (e) of subsection (1) of 35, sub-section (4) of 39, sub-section (6) of 40, 41 to 43, 46, 47, 52 to 54, 55 [except sub-section (3)], 56, 61 [except proviso to clause (b) of subsection (1)], 62 [except sub-sections (4) to (6)], 63, 64, 67, 68, sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29. The terms Board of Directors or Board and Director are defined in Sections 2(10) and 2(34) and read as under : 2(10) Board of Directors or Board , in relation to a company, means the collective body of the directors of the company. 2(34) director means a director appointed to the Board of a company. 30. Chapter XI of Act, 2013 deals with appointment and qualifications of 'Directors' and contains Sections 149 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 obliga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns under section 188 at any time during the last preceding five years; or (h) he has not complied with sub-section (3) of section 152. (2) No person who is or has been a director of a company which- (a) has not filed financial statements or annual returns for any continuous period of three financial years; or (b) has failed to repay the deposits accepted by it or pay interest thereon or to redeem any debentures on the due date or pay interest due thereon or pay any dividend 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 disqualificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92 as it stands after amendment made by Act 1 of 2018 w.e.f. 07.05.2018. 35. Sub-section 5 of Section 92 of Act, 2013 contemplates failure on the part of a Company to file its Annual Return under Sub-section (4) and says that it is an offence punishable with fine and every officer of the Company, who is in default is liable to be punished with imprisonment as well as fine as provided therein. We may produce sub-section (5) of Section 92 of Act, 2013 as under : 92 (5). If a company fails to file its annual return under 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial statements to be filed with the Registrar, attach the accounts of its subsidiary or subsidiaries which have been incorporated outside India and which have not established their place of business in India. Provided also that in the case of a subsidiary which has been incorporated outside India (herein referred to as foreign subsidiary ), which is not required to get its financial statement audited under any law of the country of its incorporation and which does not get such financial statement audited, the requirements of the fourth proviso 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts himself from all the meetings of the Board of Directors hold during a period of twelve months with or without seeking leave of absence of the Board; (c) he acts in contravention of the provisions of Section 184 relating to entering into contracts or arrangements in which he is directly or indirectly interested; (d) he fails to disclose his interest in any contract or arrangement in which he is directly or indirectly interested, in cotravention of the provisions of Section 184; (e) he becomes disqualified by an order of a court or the Tribunal; (f) he is convicted 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emoving the difficulty: Provided that no such order shall be made after the expiry of a period of five years from the date of commencement of Section 1 of this Act. (2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament. 42. Section 1 of Act, 2013 came into force at once i.e. 30.08.2013 when it was published in the Gazette of India(Extra-ordinary) after receiving assent of the President on 29.08.2013. Therefore, Central Government may issue orders referable to Section 470 (1) of Act, 2013 for five years i.e. upto 29.08.2018. 43. Now we proceed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f is quite clear, to make things absolutely clear it is hereby notified that the financial statements (and documents required to be attached thereto), auditors report and Board's report in respect of financial years that commenced earlier that 1st April shall be governed by the relevant provisions/schedules/rules of the Companies Act, 1956 and that in respect of financial years commencing on or after 1st April, 2014, the provisions of the new Act shall apply. (emphasis added) 48. The above Circular also shows that 'Financial Year' commencing from 1st April after enforcement of Section 164 of Act, 2013 will be relevant and hence, it would 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Courts have held that the defaults for the financial year ending 31.03.2014 cannot be considered for determining whether a director had incurred the disqualification under Section 164 (2) of the Act. 52. Concededly, Section 164 (2) of the Act operates prospectively. However, such prospective operation would entail taking into account failure to file the financial statements pertaining to the financial year ending 31.03.2014 on or before 30.10.2014. This Court is of the view that the taking into account such default does not amount to a retrospective application of Section 164 of the Act and the contentions advanced by the petitioners in this regard, are unmerited. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands in a different class than one who has regularly complied with statutory provisions, therefore, Article 14 of the Constitution, in our view, does not apply. There is a valid classification between a tainted and untained Director and it also has a reasonable nexus with the object sought to be achieved i.e. to make compliance of statutory provisions more stringent and providing stringent provisions so that the people may not have any liberty to disobey provisions without facing any consequences. 56. Legislature has maintained a distinction between Directors who stand disqualified, suffering one or more disqualifications under Section 274 (1) (a) to (f) and the disqualifications 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 013 has been required to make such a declaration. Instead Statute itself makes declaration. The effect and consequence of attracting disqualification is automatic. It requires no order or declaration by any authority. The list issued by ROC of such unqualified Directors is only a ministerial act. 60. Every provision which excludes principles of natural justice cannot be said to be per se arbitrary. It depends upon the facts and circumstances, nature of Statutes, object, purpose and other relevant factors to examine whether compliance of principles of natural justice is necessary or not. In the present case, what is contemplated in Section 164(2) (a) is certain statutory duty which if 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not indulged in conjectures on this aspect and it was responsibility and onus of respondents to disclose as to what disqualification is suffered by petitioners-Directors so as to attract Section 164 (2) of Act, 2013 and the consequences provided in Section 167 of Act, 2013. 68. Chart of various petitions would show that petitioners are Directors in more than one Companies except a few one where petitioner is Director in single company. For example, in Writ Petition No.15270 of 2018 petitioner-2 Jaspal Singh is Director in only one Company i.e. Newwaves India Estate Management Services Pvt Ltd. In all these writ petitions one of the Company in which petitioners are Directors, has been struck off under 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 givin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the notice, the Registrar may, unless cause to the contrary is shown by the company, strike off its name from the register of companies, and shall publish notice thereof in the Offical Gazette, and on the publication in the Official Gazette of this notice, the company shall stand dissolved. (6) The Registrar, before passing an order under sub-section (5), shall satisfy himself that sufficient provision has been made for the realisation of all amount due to the company and for the payment or discharge of its liabilities and obligations by the company within a reasonable time and, if necessary, obtain necessary undertakings from the managing director, director or other persons in charge of the management of the company: 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw but the condition precedent is that the condition of disqualification actually exists and for this purpose, in our view, a bare minimum requirement of notice to such Directors would be necessary to verify, whether such condition exists or not. 73. We could have examined all these writ petitions individually, provided respondents would have given and disclosed details of disqualification suffered by petitioners-Directors necessary to attract Section 164 (2) read with Section 167 (1) (a) of Act, 2013, but unfortunately that has not been done. On the contrary, argument is that three consecutive Financial Years would commence from Financial Year 2013-14. This stand of respondents clearly shows that what is not permissible to attract Section 164(2) (a) of 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 Year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 167 of Act, 2013, has been considered and negatived by Gujarat High Court in Gaurang Balvantlal Shah (supra), Delhi High Court in Mukut Pathak (supra), Karnataka High Court in Yashodhara Shroff (supra) and Telangana High Court in Venkata Ramana Tadiparthi (supra), while Madras High Court in Bhagavan Das Dhananjaya Das (supra) has taken a different view. 77. We have examined all the aforesaid authorities in depth and with great respect to the view taken in the aforesaid judgments, we find that a complete embargo on principles of natural justice would not be justified, particularly when to attract disqualification and consequences under aforesaid provisions, certain basic facts, whether exist or not, had to be established and for this purpose at least a notice to concerned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o provision supporting the respondents action of cancelling the DSC of various directors. The said action is therefore unsustainable. (2) Gujarat High Court in Gaurang Balvantlal Shah (supra), Paragraphs 29 to 31: 29. This takes the Court to the next question as to whether the respondents could have deactivated the DINs of the petitioners as a consequence of the impugned list? In this regard, it would be appropriate to refer to the relevant provisions contained in the Act and the said Rules. Section 152 (3) provides that no person shall be appointed as a Director of a company, unless he has been allotted the Director Identification Number under Section 154, Section 153 requires every individual intending to be appointed as Director of a company to make an application for allotment 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 pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the DIN could be resorted to by the concerned respondents only as per the provisions contained in the said Rules. (3) Telangana High Court in Venkata Ramana Tadiparthi (supra), Paragraphs 28 and 30 28. Clauses (a) to (f) of Rule 11, extracted above, provides for the circumstances under which the DIN can be cancelled or deactivated. The said grounds, are different from the ground envisaged under Section 164 (2) (a) of the Act. Therefore, for the alleged violation under Section 164 of the Act, DINs cannot be cancelled or deactivated, except in accordance with Rule 11 of the Rules. 30. In view of the above facts and circumstances and the judgment referred to supra, the deactivation of the DINs of the petitioners for alleged violations under Section 164 of the Act, cannot be sustained. 80. 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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