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W.P.(C) 8896/2017
\ Date of Decision: Q*** March. 201S SUSHENMOHAN GUPTA AND ORS. ..... Petitioners
Through Mr,.Alok Kuchhal and Ms. Chanchal Yadav, Advocate
Mr.Vikram Jetley, CGSC with Mr.Rakesh Tiwari, ROC &Mr.Sanjay
Shorey, Director (legal) for R-1 &2.
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT
GITA MITTAL. ACTING CTTTEF JUSTTrF
1. This writ petition has been filed by three petitioners, who are directors ma company named Horizon Air Support Maintenance (India) Private Limited (liereinafter referred to as "Company"), registered under tlie provisions ofIndian Companies Act, 1956.
2. Apart from ttiis Company, tlie petitioners are stated to be Directors of several other companies as follows:
(i) Petitioner No. 1- 14 Companies
(ii) Petitioner No.2 - 11 Companies
(iii) Petitioner No.3 —
3. Tlie writ petition makes areference to ashow cause notice issued by Respondent No.2 dated 17'^ March, 2017, which was suitablyrepliedjointly by petitioners on 4''" May, 2017.
4. It was stated therein that Company does not intend to continue and requested respondent No.2 to grant some more time for proceeding with the closure ofthe Company.
5. The writ petition has been instituted in view of the notice dated 6"" September, 2017 and 12® September, 2017 issued under Section 164(2)(a) ofthe Companies Act, 2013 by the respondents disqualifying the petitioners as Directors in the company for the reason that there was default in submitting returns which were statutorily required to be filed with the regard to the affairs ofthe said Company.
6. The writ petition interalia seeks quashing ofthe said notices dated 6'" September, 2017 and 12" September, 2017 qua the petitioners.
7. Notice was issued in the writ petition by an order dated 10'" October, 2017 when we also granted interim stay ofsaid notice dated e'" September, 2017and 12'"September, 2017 so far as they concernedthe writpetitioners.
8. We are today informed by Ms.Maninder Acharya, learned ASG that pursuant to the stay order granted by this Court, the Director Identification Numbers ('DIN') ofthe petitioners were activated by the respondents.
9. Thereafter, the annual returns and financial statements of the Company have been filed up to the financial year 2015-16 by the petitioners Page 2 of[4] )Jo in the office ofrespondent no. 2between 25^'' October, 2017 to 26^^ October, 2017 and for 2016-17 on 26'^ November, 2017.
10. Asubmission has been made before us by Mr. Alok Kuchhal, learned counsel for the petitioners that, in view ofthe above, so far as the defaults attributed to the Directors is concerned, 'all deficiencies have been addressed bythem and, the reliefsought in the writ petition deserves to be granted.
11. It is further submitted by Mr. Alok Kuchhal, learned counsel for the petitioners' that the Company had throughout continued to run its business and, for this reason as well this writ petition ought to be favourably considered.
12. Contesting this claim, it is submitted by Ms.Maninder Acharya, learned ASG that mview of the above narration of facts, it is an admitted position that the petitioners had defaulted and that the action of the respondents in declaring them as 'disqualified' under Section 164(2) ofthe Companies Act, 2013 cannot be faulted.
13. Our attention has been drawn however to the Condonation of Delay Scheme, 2018 (hereinafter referred to the "CODS Scheme, 2018") floated by the respondents, enabling such defaulters to seek removal of the disqualification. It is submitted that in case the petitioners wish to avail the benefit ofrestoration ofthe directorship, they would be required to comport to the requirements ofthis scheme.
14. Ms.Maninder Acharya, learned ASG further submits on instructions of Mr.Sanjay Shorey, Joint Director (Legal) and Mr.Rakesh Tiwari, ROC (Delhi &Haryana), that ifthe petitioners wished to avail ofthe benefit ofthe CODS 2018, they may deposit the form e-Cods on behalf of deficient Company with the requisite fee payable under the scheme with the W.P.(C) 8896/2017 ^ ^ Page 3 of[4] ^ I 'I ^7 respondent without the necessity of refilling the document which stands filed as noted above.
15. It is submitted that upon such compliances, the respondents will consider the matter in accordance with law for removal ofthe names ofthe petitioners from the Ust ofdisqualified directors. This suggestion on behalf ofrespondents is certainly fair and deserves to be accepted.
16. In view ofthe above, we direct as follows;
(i) Subject to the petitioners submitting the requisite form e-Cods and fees on behalf of deficient Company with the respondents within a periodoftwo weeks as prayed, the respondents shall forthwith talce steps for removal ofthe petitioners' names from the disqualified directors. In case the petitioners have not submitted the prescribed form under the CODS Scheme, the same may be also submitted withinthe same period. (ii)It is made clear that given the fact that the petitioners have already submitted the deficient returns it shall not be necessary for them to submit the same afresh along,with this writ petition.
(iii) The orders would be posted on the website and shall also be communicated to the petitioners within two weeks from the deposit of the requisite form and fees.
17. This writ petition is disposed ofin the above terms. Dasti.
C.HARI-SH^NKAR^T^