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2018 DIGILAW 1039 (HP)

Sikander Madan v. Union of India

2018-05-31

SANDEEP SHARMA, SANJAY KAROL

body2018
JUDGMENT : Sandeep Sharma, J. 1. With the consent of learned counsel representing the petitioners in the aforesaid writ petitions, all the cases are being taken together for final adjudication since issues involved in abovementioned petitions are identical. Moreover, in all the petitions similar relief has been claimed by the petitioners. 2. Above named petitioners, who claimed themselves to be the Directors of different Companies, being aggrieved with the inclusion of their names in the list of disqualified Directors published by the respondents, have approached this Court in the instant proceedings, praying therein for issuance of writ in the nature of mandamus directing thereby respondents not to block Director Identification Numbers (hereinafter referred to as ‘DIN’) issued in their names. 3. Petitioners claim that they are the Directors of private companies, but such companies have not carried out any business for considerable time and their accounts are also not in operation for the last so many years. Since the petitioners did not file requisite returns as required under the Companies Act, 2013 (hereinafter referred to as the ‘Act’), they incurred disqualification under Section 164(2) of the Act. 4. On 27.04.2018, when all these petitions came up for admission, learned counsel representing the parties unequivocally stated before this Court that the petitioners do not wish to revive the petitioner-Company and would like to instead apply for its voluntary liquidation. Learned counsel representing the petitioners also stated before this Court that the petitioners apart from being on the Board of Directors of alleged defaulter company are also appointed as Director on the Board of Directors of other companies and as such inclusion of their names in the list of disqualified Directors, without notice, affects their interest. 5. Having heard learned counsel for the parties and perused the record made available to this Court, this Court passed interim order dated 2704.2018 and observed that disqualification of holding Directorship, if any, by the petitioners should not extend to other companies, which are not in default, and that too, without notice to the petitioners. Since companies had not carried out any business, they were liable to be struck off from the Registrar of Companies. However, they could seek voluntary dissolution of the Companies under Section 248(2) of the Act only if they were provided opportunity to do so. Since companies had not carried out any business, they were liable to be struck off from the Registrar of Companies. However, they could seek voluntary dissolution of the Companies under Section 248(2) of the Act only if they were provided opportunity to do so. At the time of hearing on 27.04.2018, this Court, having taken note of material adduced on record, especially factum that Companies are not carrying out any business and their bank accounts have not been operated for quiet considerable time, arrived at a conclusion that the petitioners ought to have provided benefit of CODS-2018 and accordingly, passed the following directions: “(a) The petitioners may file all the requisite returns in relation to the Company to avail the CODS-2018 (b) The petitioners may also file the necessary resolutions for voluntarily striking off the name of the Company as required under Section 248(2) of the Act. (c) The petitioners would also make a necessary application under CODS-2018 along with the requisite charges. (d) The aforesaid documents and applications will not be submitted online but in hardcopies to the Registrar of Companies. 6. Apart from above, this Court also directed that the Registrar shall scrutinize the documents submitted by the petitioners and in case same are found to be in accordance with Section 248(2) of the Act, the petitioners would be granted the benefit of the CODS-2018. This Court further held that removal of the Company from the Registrar under Section 248(1) of the Act would be deemed as striking off the Company under Section 248(2) of the Act, whereafter the petitioner’s applications under CODS-2018 would be considered sympathetically by the Registrar. 7. The aforesaid order dated 27.04.2018 was passed in the presence of learned Assistant Solicitor General of India and today during the proceedings of the case, we have been informed that the petitioners have already approached the Registrar of Companies and have filed documents in terms of directions contained in order dated 27.4.2018. 8. Learned Senior Counsel representing the petitioners, fairly state that since the matter is under active consideration of Registrar of Companies in terms of interim order dated 27.04.2018 above captioned petitions can be disposed of with the direction to the authority concerned to decide the issue at hand expeditiously in terms of interim order dated 27.4.2018 after affording opportunity of being heard to the petitioners. 9. 9. Consequently, in view of above, present petitions are disposed of with the direction to the respondents to consider and decide the application filed by the petitioners, under the CODS-2018, within a time bound manner, preferably within a period of two months from today, after having afforded opportunity of being heard to the petitioners, who, being aggrieved, if any, by order to be passed by the competent authority in terms of order dated 27.4.2018, are at liberty to file appropriate proceedings in appropriate Court of law. It is further clarified that till the time final decision is taken on the petitions by the respondents, interim order dated 27.04.2018 shall remain in force.