CRUX – Writ Petition- Delhi High Court- Order Dated: 22.03.2018
CRUX –
Writ Petition- Delhi High Court-
Order
Dated: 22.03.2018
Short
Note:
Bunch of writ petitions have been filed by persons
who were directors in companies incorporated under the provisions of the Indian
Companies Act, 1956. Apart from these companies, these petitioners have stated
in the writ petitions that they were directors of other companies as well and
such companies are active.
The writ
petitions inter alia seek quashing of the said notices dated 6th September,
2017 and 12th September, 2017. (Disqualification of Director and Struck off
Companies)
This is article no. 325 of the series of editorials written by the author
on corporate laws
{Including Companies Act, 2013, SEBI, RBI Regulations, IBC, LLP Act, 2008
etc.}.
Fact of the Case:
Petitioner
1. These
writ petitioners have raised several questions of fact and this
acts and orders of the Registrar of Companies.
2. Even
they have challenged that notice u/s 164(2) and 248 are
both in gross violation of the principles of natural justice.
3. ROC
has not issued notice as per Rule 3(2) of the
Companies (Removal of Name of Companies from the Registrar of Companies) Rules,
2016. Therefore, action of register of companies cannot be sustained for this
reason as well.
4. Through
Write
petition many petitioners has received interim stay of the impugned
notices dated 6th September, 2017 and 12th September, 2017
5. A
grievance is made by some of the petitioners before us that these interim
orders have not been complied with and that the DIN numbers of the
petitioners have not been activated.
6. A
grievance is made by some of the petitioners before us that these
·
interim orders have not been complied
with and
·
the DIN numbers of the petitioners
have not been activated.
7. It
appears that under the CODS-2018 Scheme, the respondents (ROC) were
accepting the returns under the Scheme only in an e-format.
·
However, for the reason that the names
of the Companies in which the petitioners are directors stand struck off,
·
we are informed that the office of the
Registrar of Companies would not accept any e-filing by these petitioners
8. We
are informed by Ms. Maninder Acharya, learned ASG that it would not be possible
for the respondents to accept any charges for these companies i.e. Rs. 30,000/-.
Respondent
9. Respondent:
It says that notices under Section 248(1) have been sent to the Companies and
the directors.
ORDER BY:
HON'BLE
THE ACTING CHIEF JUSTICE
HON'BLE
MR. JUSTICE C.HARI SHANKAR
Decision of Hon’ble
High Court:
A. Activation
of DIN:
The
petitioner(s) whose DIN numbers have not been activated despite interim orders
in their favour, shall inform Mr. Rakesh Tiwari, ROC of this fact. So far as
the writ petitions, in whose favour interim order staying the effect and
operation of the notices dated 6th September, 2017 and 12th September, 2017 are
concerned, the respondents shall forthwith activate the DIN number.
B. Physical
filing of Documents:
In
order to balance equities and to ensure that no prejudice results to either
party, it is directed that so far as the petitioners in whose favour interim
orders stand passed are concerned, these petitioners would,
·
without prejudice to rights and
contentions of all parties, stand permitted to file the compliances under the
CODS- 2018 Scheme as hard copies with the respondents.
·
The filings by these petitioners shall
be preserved by the respondents and shall abide further orders of this court.
C. Payment
of Fees:
Given
the stand of the respondents, it is further directed that the petitioners shall
ensure that the
·
fee of Rs.30,000/- and any other
charges which are payable under the CODS-2018 Scheme shall be deposited in the
Registry of this court by way of a fixed deposit receipt in the name of the
Registrar General of this court initially
·
for a period of one year which shall be
kept renewed till further orders of this court.
D. Submission
of Computation Sheet:
Each
of the petitioners shall, with the deposit, enclose a computation and the basis
on which the amount which has been deposited stands calculated.
Submit
the copy thereof with the respondents.
E. Extention
of time for filing till 6.04.2018:
Given
the fact that the Registry is completely closed between 25th of March, 2018
till 1st April, 2018, the deposit of the charges with the Registry, and
documents with the Registrar of Companies shall be positively made till 6th April,
2018
F. Payment
for CODS:
§ We
make it clear that so far as the deposits under the CODS-2018 Scheme are
concerned, the same have to be made by and on behalf of the Company concerned.
§ As
such, the payment or deposit by any one director shall be treated to have been
made for and on behalf of the company. Other directors would not be required to
duplicate the payments even though they may have filed separate writ petitions.
G. No
Duplicate Payment:
It
is also made clear that in case any of the petitioners have made deposits of
any amount, in any form, i.e. say by demand drafts or otherwise, with the
Registrar of Companies, in purported compliance of the requirements of the
CODS-2018 Scheme, such petitioners are not required to duplicate the payment or
make deposits in this court
Conclusion by Court:
· We
make it clear that in case it is held that the petitioner are entitled to avail
the CODS-2018 Scheme,
· the
submission of the documents with the Registrar of Companies and deposit made in
this court shall be deemed to be compliances and deposits having been effected
in due compliance with the requirements of CODS-2018 Scheme with the
respondents of course subject to making good any shortcomings which may be
pointed out by the respondents.
List on 24th July, 2018.
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