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.