IN THE HIGH COURT OF JUDICATURE AT MADRAS

(SPECIAL ORIGINAL JURISDICTION)

W.P.No. OF 2018
R.Sivakumar,
S/o. Ragavan,
Plot No.25, Flat No.S1, MF Tulip,
Krishna Nagar Extension,
Madipakkam,
Chennai – 600 091. … Petitioner.
-Versus-
1. UNION OF INDIA
Represented by its
Ministry of Corporate Affairs
Shastri Bhawan, Dr. Rajendra Prasad Road
New Delhi – 110 001.

2. REGISTRAR OF COMPANIES
Block No. 6, B- Wing, 2nd Floor
Shastri Bhawan, 26 Haddows Road
Chennai – 600 006 . ...Respondents

AFFIDAVIT FILED BY THE PETITIONER

I, R.Sivakumar, S/o.Ragavan, aged about ___ years, residing at Plot
No.25, Flat No.S1, MF Tulip, Krishna Nagar Extension, Madipakkam,
Chennai – 600 091 do hereby solemnly affirm and sincerely state as
follows:

1. I submit that I am the Petitioner herein and as such well

acquainted with the facts of the case.

2. I submit that I am constrained to file the above Writ Petition,

praying for a Writ of Certiorarified Mandamus calling for the records of
the 2nd Respondent relating to the Impugned Order of Disqualification
dated 01.11.2017uploaded in the website of the 1st Respondent in so
far as the Petitioner herein is concerned and Quash the same as illegal,
arbitrary, devoid of merit and consequentially direct the Respondents
herein to restore the Petitioner’s DIN and permit the Petitioner to get
reappointed/continued as a Director of any Company or appointed as a
Director in any Company without any hindrance.
3. I submit that the Petitioner herein holds Director Identification
Number (DIN) 01085075 and is holding the post of Director in
Companies incorporated under the Companies Act, 1956/2013 and
manage the affairs and business of the respective Companies
morefully stated herein below.
CIN/FCRN Company Name Last filed
S.No Annual
Return
1. U72900TN1979PLC007991 STARDRIVE BUSDUCTS 31/03/2017
LTD
2. U45100TN1982PLC009705 SOLAR PAPER MILL LTD 31/03/2017
3. U01403TN1991PTC020382 EARTH SENSE AGRO 31/03/2017
PRODUCTS PVT LTD
4. U65191TH1991PLC021413 SARVA SUBITCHAM STRIKE OFF
FINANCE LTD
5. U21093TN1995PLC030112 NELSUN PAPER MILL LTD 31/03/2016
6. U51909TN1997PTC038349 ANIKSHA PRODUCTIONS 31/03/2017
PVT LTD
7. U74999TN2008PTC066002 EARTH SENSE RECYCLE 31/03/2017
PVT LTD
8. U33110TN2008PTC066576 MEDILINK ENTERPRISES 31/03/2017
PVT LTD
9. U90002TN2007PTC064228 PARISUDH ECO 31/03/2017
CONCEPTS PVT LTD

4. I submit that the above said companies are filing the respective
statutory returns without default. I submit that SARVA SUBITCHAM
FINANCE LTD of which I am one of the Director made an application
for striking off vide SRN C41837410 dated 02.02.2015 and the same
has also been approved by the Respondent, striking off the said
company.

5. I submit that the 2nd Respondent herein on 01.11.2017 released

a list of disqualified Directors, who have been disqualified under
Section 164(2)(a) of the Companies Act, 2013 as Director with effect
from 01.11.2016. I submit that to the shock and surprise my name
was also listed among the other Directors in the said list under Serial
No. ___________ (Disqualified from 1/11/2016 to 31/10/2021) for
M/s. PRO VIDEO SERIVES PRIVATE LIMITED.

6. I submit that I am no way connected to the said M/s. PRO VIDEO

SERIVES PRIVATE LIMITED and I am not a Director in the said
company. I submit that pursuant to the publication of the list, on a
detailed enquiry I found out that the said M/s. PRO VIDEO SERIVES
PRIVATE LIMITED has been incorporated on 09.08.1989 and the
present status of the company is Strike Off as it has not filed the
annual returns and financial statement with the 2nd Respondent. I
submit that one Mr.Rajappan Kandasamy Sivakumar (DIN 07887174)
is the Director of M/s. PRO VIDEO SERIVES PRIVATE LIMITED.

7. On further enquiry it was found that my DIN 01085075 has

been wrongly updated in the place of DIN of the said
Mr.Rajappan Kandasamy Sivakumar and as the said company in which
he was the director has been strike off for non filing of the returns
instead of disqualifying his DIN my DIN has been disqualified by the
Respondents. I submit that the wrongful updation of my DIN in the
place of his DIN has resulted in the present disqualification. I submit
that immediately I had contacted the said Mr.Rajappan Kandasamy
Sivakumar, Director of M/s. PRO VIDEO SERIVES PRIVATE LIMITED
and the wrong updation of DIN was reversed by online submission of
DIR -12 registration vide SRN G51548691 dated 29.08.2017.

8. I submit that subsequent thereto I had made a representation

dated 07.04.2018 and 20.06.2018 to the 2nd Respondent herein
seeking to remove my name from the list of disqualified directors
under Section 164(2) of the Companies Act. In view of that, the 2nd
Respondent has disqualified me as a Director under Section 164(2)(a)
of the Companies Act, 2013, I am not able to function as a Director in
the above mentioned companies and by virtue of which I am
prohibited from being appointed or re-appointed as Directors in any
other Company for a period of 5 years from 01.11.2016 to
31.10.2021.

9. I further submit that since the Petitioner is disqualified under

Section 164(2)(a) of the Companies Act, 2013 as stated above, they
are unable to file the E– Forms for the other Companies they still
remain to be Directors, thereby rendering an act of default on the part
of other Companies they remain to be Directors in.

10. At this juncture it is relevant to analyse the provisions of

Section 164 (2) (a) of the Companies Act, 2013 that came in to effect
from 01.04.2014 and the corresponding Section 274 (1) (g) of the
Companies Act, 1956 that was repealed with the new Section coming
in to force.

“274. DISQUALIFICATION OF DIRECTORS:

(1) A person shall not be capable of being appointed
as a Director of a Company, if –

(g) such person is already a director of a Public

Company which, -

(A) has not filed the annual accounts and

annual returns for any continuous three
financial years commencing on and after the
1st day of April, 1999; or
(B) has failed to repay its deposit or interest
thereon on due date or redeem its debentures
on due date or pay dividend and such failure
continues for one year or more;

Provided that such person shall not be eligible to be

appointed as a Director of any other Public Company
for a period of 5 years from the dated on which such
Public Company, in which he is a Director, failed to
file annual accounts and annual returns under sub-
clause (A) or has failed to repay its deposit or
interest or redeem its debentures on due dated or
pay dividend referred to in clause (B).”

11. I submit that according to the above erstwhile provision under

the Companies Act, 1956, if a Public Company fails to file annual
accounts and annual returns for three years continuously, a person is
prohibited to be appointed as a Director in any other Public Company
for a period of 5 Years. In other words, the Private Companies were
outside the purview of Section 274 (1) (g) of the Companies Act, 1956
and therefore, the Directors of the Private Limited Company that failed
to file annual accounts and annual returns for three years continuously
were not disqualified to be appointed or reappointed as a Director of a
Company or for any other Company i.e., Private or Section 25
Companies. As such, the Directors of a Private Limited Company were
not and cannot be disqualified by applying Section 274 (1) (g) of the
Companies Act, 1956.

12. I submit that the Section 164 of the Companies Act, 2013 came
to be notified with effect from 01.04.2014 and Section 164 (2) (a)
read as follows:
“164. DISQUALIFICATION FOR APPOINTMENT OF
DIRECTORS:
(2) No person who is or has been a Director of
company which –
(a) has not filed financial statements or annual
returns for any continuous period of three
financial years ;

(b) has failed to repay the deposits accepted by

it or pay interest thereon or to redeem any
debentures on the due date or pay interest due
thereon or pay any dividend declared and such
failure to pay redeem continues for one year or
more;

shall be eligible to re-appointed as a Director of

that Company or appointed in any other Company
for a period of five years from the dated on which
the said Company failed to do so.”
13. I submit that the corresponding new Section 164 (2) (a) of the
Companies Act, 2013 uses the phrase “Company” as against the
phrase “Public Company”, that was used under the Companies Act,
1956. Therefore, it is to be understood that the present Section does
not exempt the Private Companies from the ambit of disqualification.
In the other words, it is said that the disqualification would apply to all
type of Companies also, if it fails to file annual accounts and annual
returns for a period of three financial years continuously. As such, the
appointment or re–appointment of the Directors would not confine only
to the Public Company as like the Companies Act, 1956, but also
extends to all types of Company as per the Companies Act, 2013.

14. I submit that the 2nd Respondent without giving an opportunity

of being heard, has suo –moto disqualified the Petitioner as Director
which is against the provisions of Section 164 (2) (a) of the Companies
Act, 2013 that came in to effect from 01.04.2014. I submit that I am
is holding directorship in other Companies and thus the disqualification
as Director has caused serious hardship both to the Petitioner himself
and the Companies as the day to day affairs of the Company resulting
in multiple non – compliances, resulting in various legal hurdles both
to the Petitioner and the Companies.

15. In the above circumstances, having left with no other option

and alternative remedy, the Petitioner is constrained to approach this
Hon’ble Court praying to quash the said Impugned order of
disqualification published in the website of the 1 st Respondent in so far
as the Petitioner herein is concerned for the following among the other
grounds;
GROUNDS

(i) That the Impugned Order of disqualification passed by the 2nd

Respondent herein is Unconstitutional, arbitrary, null, void and
the same is liable to be quashed;

(ii) That the Impugned Order of disqualification is arbitrary,

unreasonable and unconstitutional for being against
established principles of law laid;
 (iii) That from a mere perusal of the Impugned Order of
disqualification, it is evident that no show cause notice seeking
the explanation of the Petitioner was sent, whose interest
ought to have been considered by the 2nd Respondent herein;

(iv) That the Impugned Order of disqualification has been issued

without any opportunity or whatsoever, in gross violation
Principles of Natural Justice and Audi Alteram Partem and the
same issued without notice to the affected party is null and
void in the light of the ample findings of the Hon’ble Supreme
Court of India;

(v) The 2nd Respondent before passing the order of disqualification

ought to have verified that the Petitioner is not the director of
said M/s. PRO VIDEO SERIVES PRIVATE LIMITED and the
Petitioner’s DIN has been wrongly updated in the place of the
original director of M/s. PRO VIDEO SERIVES PRIVATE
LIMITED.

(vi) The 2nd Respondent of receipt of the representations made by

the ought to have verified the records and ought to have
removed the name of the Petitioner from the list of disqualified
directors. The 2nd Respondent ought to have verified that the
wrongful updation has now been corrected and the original
directors DIN has been restored in the said company records
and as such there is no impediment for the 2nd Respondent in
removing the name of the Petitioner from the list of
disqualified directors.

16. I submit that the Original copy of the Impugned Order of

disqualification has not been served to me as the 1st Respondent had
uploaded the same only in its website and as such, I am constrained to
file a photocopy of the Impugned order downloaded from the website
of the 1st Respondent. I state that the failure to obtain the original
copy of the impugned order is neither wilful nor wanton and if the
production of the original copy is not dispensed with the same would
result in serious prejudice to my rights.
17. I submit that if the I am not allowed to function as Director in
other companies, I will be put to hardship and shall suffer irreparable
loss hence it is just and necessary to stay the operations of the
Impugned Order of the 2nd Respondent dated 01.11.2017 which was
uploaded in the website of the 1st Respondent in so far as the
Petitioner is concerned and if the order impugned is not stayed the
entire operations of the other companies would be hampered resulting
in serious prejudice my rights.

Under the above circumstances it is humbly prayed that this Hon’ble

Court may be pleased to dispense with the production of the Original
of the Impugned Order of disqualification of the 2nd Respondent dated
01.11.2017 uploaded in the website of the 1 st Respondent and thus
render justice.

Under the above circumstances it is humbly prayed that this Hon’ble

Court may be pleased to pass an order of Stay of the operation of the
Impugned order of disqualification dated 01.11.2017 passed by the 2 nd
Respondent which was uploaded in the website of the 1 st Respondent
is so far as the Petitioner herein is concerned pending disposal of the
Writ Petition and pass such further or other orders as this Hon’ble
Court may deem fit and proper in the circumstances of the case and
thus render justice.

Under the above circumstances it is humbly prayed that this Hon’ble

Court may be pleased to issue a Writ, Order or Direction more
particularly a Writ in the nature of Certiorarified Mandamus calling for
the records of the 2nd Respondent relating to the Impugned Order of
disqualification dated 01.11.2017 uploaded in the website of the 1 st
Respondent in so far as the Petitioner herein is concerned and quash
the same as illegal, arbitrary and devoid of merit and consequentially
direct the Respondents herein to remove the name of the Petitioner’s
name from the list of disqualified directors and permit the Petitioner to
get reappointed as Director of any Company or appointed as Director
in any Company and pass such further or other orders as this Hon’ble
Court may deem fit and proper in the circumstances of the case and
thus render justice.
Solemnly affirmed at Chennai on } BEFORE ME
this the day of July, 2018 }
and signed his name in my presence }
Last Page: Corrs: Nil.