IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA WRIT PETITION No.46821 OF 2019 (GM-RES) BETWEEN:
DINIL RAMAN KATTUKANDATHIL S/O. RAMAN KATTUKANDATHIL AGED 42 YEARS, R/O. NO.15, 3RD FLOOR, OPPOSITE GANGAMMA TEMPLE ROAD, JALAHALLI, BENGALURU-560013.
... PETITIONER (BY MS.SHOBHANA NATARAJA, ADVOCATE FOR SRI. K.V.OMPRAKASH, ADVOCATE) AND:
1. UNION OF INDIA REPRESENTED BY ITS UNDER SECRETARY, MINISTRY OF CORPORATE AFFAIRS SHASTRY BHAWAN DR. RAJENDRA PRASAD ROAD, NEW DELHI-110001.
2. REGISTRAR OF COMPANIES, KARNATAKA, KENDRIYA SADAN, II BLOCK, KORAMANGALA, BENGALURU-560034.
... RESPONDENTS (BY SRI. THIMMANNA BHAT DEVATHE, CGC FOR R1 & R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENT TO RE-ACTIVATE THE DIN OF THE PETITIONER BY ALTERING THE DIN STATUS AND TO REFLECT AS ACTIVE IN THE MCA OFFICIAL WEBSITE AS SHOWN IN ANNEX-C AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner in the above writ petition seeks the following prayer:-
a. Issue appropriate writ, Order or Direction, thereby directing the respondents to re-activate the DIN of the petitioner by altering the DIN status and to reflect as ‘Active’ in the MCA Official Website as shown in Annexure-C.
b. Issue appropriate writ, Order or Direction, thereby declaring that the decision of the respondent No.1 and 2 vide its directions uploaded on the MCA Website as shown in Annexure-A disqualifying the petitioner qua Directors of the Private Limited Company is unconstitutional and is in contravention of the provisions of Part III of the Constitution of India, by virtue of which, the Respondent Nos.1 and 2 has not given any opportunity to remove disqualification to the Director; and/or c. Pass any other order and/or direction, as this Hon’ble court may deem fit proper under the facts and circumstances of the present case and in the interest of justice.
Both the learned counsels for the parties jointly submit that the issue involved in the present writ petition is already considered and disposed of by this Court in W.P.No.52911/2017 and connected matters dated 12.06.2019. Said submission is placed on record.
2. In view of the above, the present writ petition is also disposed of in the same terms and following directions which are extracted hereinbelow:-
(i) Where the disqualification of the petitioners is based by taking into consideration any financial year “prior to 01.04.2014 as well as subsequent thereto” while reckoning continuous period of three financial years under Section 164(2) (a) of the Act, irrespective of whether the petitioners are directors of public companies or private companies, such a disqualification being bad in law, the Writ petitions are allowed and the impugned list is quashed to that extent only;
(ii) If the disqualification of the petitioners is based by taking into consideration any financial year prior to 01.04.2014 only i.e., the disqualification has occurred under the provisions of the 1956 Act in respect of the public companies, the writ petitions are dismissed.
(iii) If the disqualification of the directors is based by taking into consideration of three continuous financial years subsequent to 01.04.2014, irrespective of whether the petitioners are directors of public companies or private companies, they stand disqualified under the Act;
(iv) Where the disqualification of the directors is based by taking into consideration any financial year prior to 01.04.2014 in respect of private companies, such disqualification being bad in law, the writ petitions are allowed to the aforesaid extent only;
(v) The writ petitions, wherein the challenge is also made to the vires of Section 164(2)(a), and/or 167(1)(a) and/or proviso to Section 167(1)(a) of the Act, are dismissed to the aforesaid extent;
(vi) The respondents are directed to restore the DIN of those directors whose disqualification has been quashed by this Court;
(vii) Those petitioners who have challenged only the striking off of the companies in which they are directors have an alternative remedy of filing a proceeding before National Company Law Tribunal (NCLT) under Section 252 of the Companies Act, 2013, which provides for an appeal to be filed within a period of three years from the date of passing of the order dissolving the company under Section 248 of the Act. Hence, those writ petitions are dismissed reserving liberty to those petitioners who are aggrieved by the dissolution of the companies under Section 248 of the Act (struck off companies) to approach NCLT, if so advised;
(viii) Parties to bear their own costs.
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