1

R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 8TH DAY OF JULY 2019

BEFORE
THE HON’BLE MR. JUSTICE ALOK ARADHE

WRIT PETITION NOs.15872-875 OF 2019 (GM-RES)

BETWEEN:
1. SHRI PRAKASH BUDOOR
S/O SHRI B SIDDAPPA
AGED ABOUT 39 YEARS
OCCUPATION: DIRECTOR
M/S ALLIANCE BUSINESS SCHOOL
NO.100, 34TH MAIN, 2ND CROSS
DOLLARS SCHEME BTM I STAGE
BANGALORE-560068

2. SMT SHAILA CHEBBI GOVIND

W/O SHRI G B CHEBBI
AGED ABOUT 56 YEARS
M/S ALLIANCE BUSINESS SCHOOL
NO 100 34TH MAIN 2ND CROSS
DOLLARS SCHEME BTM I STAGE
BANGALORE-560068

3. SMT MALA MADIKERI SRINIVAS GOUDA

W/O DR SRINIVASA GOUDA
AGED ABOUT 54 YEARS
OCCUPATION: DIRECTOR
M/S ALLIANCE BUSINESS SCHOOL
NO.100 34TH MAIN 2ND CROSS
DOLLARS SCHEME BTM I STAGE
BANGALORE-560068

4. SHRI ABHAY GOVIND CHEBBI

S/O SHRI B G CHEBBI
AGED ABOUT 30 YEARS
OCCUPATION: DIRECTOR
M/S ALLIANCE BUSINESS SCHOOL
NO.100 34TH MAIN 2ND CROSS
 2

DOLLARS SCHEME BTM I STAGE

BANGALORE-560068
… PETITIONERS
(BY MR. JAYAKUMAR S PATIL, SR. COUNSEL FOR
MR. M S SHYAM SUNDAR, ADV.)

AND:
1. THE REGISTRAR OF COMPANIES KARNATAKA
(MINISTRY OF CORPORATE AFFAIRS
GOVERNMENT OF INDIA)
E WING 2ND FLOOR KENDRIYA SADAN
KORAMANGALA BANGALORE-560034

2. THE REGIONAL DIRECTOR

SOUTH EASTERN REGION (SER)
MINISTRY OF CORPORATE AFFAIRS
3RD FLOOR CORPORATE BHAVAN
BANDLAGUDA
NAGOLE TATTINNARAM VILLAGE
HAYAT NAGAR MANDAL
RANGA REDDY DISTRICT
HYDERABAD-500068

3. THE DIRECTOR GENERAL OF

CORPORATE AFFAIRS
GOVERNMENT OF INDIA
MINISTRY OF CORPORATE AFFAIRS
OFFICE OF THE D.G. CORPORATE AFFAIRS
KOTA HOUSE ANNEXE NO.1
SHAJAHAN ROAD
NEW DELHI-110011

4. THE MINISTRY OF CORPORATE AFFAIRS

GOVERNMENT OF INDIA A WING
SHASTRI BHAWAN
RAJENDRA PRASAD ROAD
NEW DELHI-110001
REPRESENTED BY ITS PRINCIPAL SECRETARY

5. MR MADHUKAR G ANGUR
AGED ABOUT 62 YEARS
NO 1128 12ST A CROSS
14TH MAIN HSR 3RD SECTOR
HSR LAYOUT BDA COMPLEX
BANGALORE-560012
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6.MS PRIYANKA B S
AGED ABOUT 30 YEARS
KUKKESRI NO 1128 14TH MAIN
21ST A CROSS HSR LAYOUT 3RD SECTOR
BANGALORE-560012
… RESPONDENTS
(BY MR. S VIJAYSHANKAR, SR. COUNSEL FOR
MR. H K SRIVASTHAVA, ADV. FOR R5,
MR.M N KUMAR, CGC FOR R1 TO R4
MR. K N PHANINDRA, SR. COUNSEL FOR
MS. ANNAPOORNA S, ADV. FOR R6 )
----
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DIRECTION PROHIBITING THE R-1 TO 4 FROM TAKING ANY
ACTION UNDER THE COMPANY'S ACT 2013 OR ANY RULES MADE
THERE UNDER ON THE BASIS OF THE COMPLAINTS LODGED BY
THE R-5 AND 6 CONCERNING THE FILINGS AND UPLOADINGS
DONE BY WAY OF DIR-12 OR MGT-7 OR ANY OTHER FILING OR
UPLOADING/S DONE BY OR FOR THE PETITIONER OR BY THE
COMPANY M/S. ALLIANCE BUSINESS SCHOOL UNDER THE
APPROVAL OF THE PRESENT BOARD CONSISTING OF THE
PETITIONER.

THESE WRIT PETITIONS COMING ON FOR ORDERS THIS

DAY, THE COURT MADE THE FOLLOWING:-

ORDER

Mr.Jayakumar S.Patil, learned Senior counsel for

Mr. Shyam Sundar the petitioners.

Mr. S. Vijay Shankar, learned Senior Counsel for

Mr. H.K. Srivasthava, learned counsel for respondent

No.5.
 4

Mr.M.N.Kumar, learned Central Government

Counsel for Respondent Nos.1 to 4.

Mr.K.N.Phanindra, learned Senior Counsel for

Ms.Annapoorna S, learned counsel for respondent No.6.

2. The writ petitions are admitted for hearing.

With consent of the learned counsel for the parties, the

same are heard finally.

3. In these petitions under Articles 226 & 227 of

the Constitution of India the petitioners inter alia seek a

writ of prohibition, prohibiting respondent Nos.1 to 4

from taking any action on the basis of the complaint

lodged by respondent Nos.5 & 6 with regard to filings

and uploading of DIR-12, MGT-7 or any other filing or

uploading done by the petitioners or by the company

viz., Alliance Business School with the approval of the

present board, against the petitioners. The petitioners

also seek a writ of certiorari for quashment of show

cause notice dated 28.03.2019, by which the petitioners

have been asked to show cause as to why an action

 5

under Rule 10(6) of the Companies (Registration Offices

and Fees) Rules, 2014 for invalidating DIR-12 forms

filed by the petitioners and revised MGT-7 filed by the

petitioners and mark them defective on the basis of the

complaints made by respondent Nos.5 and 6 be not

taken. In order to appreciate the petitioners grievance,

few relevant facts need mention, which are stated

hereinafter.

FACTUAL MATRIX

4. Two sisters viz., Shaila Chebbi and Mala

Gowda got a Private Limited Company incorporated viz.,

Alliance Business School in the year 2005. Initially,

there were only two shareholders and Directors and

both the sisters held 50% share holding each of the

company. The said company is incorporated with an

object to engage itself into educational activities by

running various courses and management studies. It is

averred in the writ petition that the petitioners who

were renowned educationist supported his sisters who

 6

had founded the company. It is also pleaded that elder

brother of the sisters viz., respondent No.5 used to stay

in United States and was rendered jobless. Thereupon,

he returned to India and was accommodated to teach in

the educational institutions of the company. The sisters

under the supervision of the elders, transferred their

share holding in favour of respondent No.5 in the year

2008 under a promise that as and when the shares are

demanded, he would return the same. It is also pleaded

that by virtue of share holding in his name, respondent

No.5 became the Managing Director of the Company

and co-opted four of his friends as fellow Directors and

nominal shareholders.

5. In the year 2010, the company approached

the Government of Karnataka for establishment of a

Private University. The State Government thereupon

directed the company to convert itself into a Non-Profit

Trust Company. Accordingly, the Company was

converted into a Non Profit Trust Company. The State

Government, thereupon enacted an Act viz., Alliance

 7

University Act, 2010 (hereinafter referred to as ‘the Act’

for short), by which the Company being a sponsoring

body was permitted to establish a University.

Accordingly, Alliance University was established and

respondent No.5 became the first Chancellor of the

University by virtue of the provision of the Act, which

provided that Managing Director of the Company, would

be the Chancellor.

6. It is averred in the writ petition that the

respondent No.5 thereafter got engaged into criminal

activities and embezzled a sum of Rs.100 Crores.

Thereupon the sisters who had founded the University

demanded the return of shares. The respondent No.5

with great difficulty returned the share holdings on

04.03.2015 and 05.03.2015 and tendered his

resignation. Thus, the constitution of the Management

of the company as well as the Board of Directors was

changed and the same was duly uploaded with records

of Registrar of Companies. On 07.04.2016, respondent

 8

No.5 was removed from the post of Chancellor of the

University as respondent No.5 was involved in a criminal

case. Thereafter, the petitioners became the Managing

Director of the Company as well as the Chancellor of the

University.

7. Thereafter, the suit viz., O.S.No.5148/2017

was filed against respondent No.5 and his associates

from interfering with the orders of injunction, in which

order of injunctions were passed against respondent

No.5 and his associates. The aforesaid order was upheld

by this court in Miscellaneous First Appeal viz., MFA

No.8545/2017. The respondent No.5 also filed a case

before the National Company Law Tribunal and made

complaints to the Ministry of Corporate Affairs and

Registrar of Companies alleging fraud. It is the case of

respondent No.5 that certain documents relating to

company and his resignation have been forged by the

petitioners. Thereupon a notice dated 28.03.2019 issued

under Rule 10(6) of the Companies (Registration,

 9

Offices and Fees) Rules, 2014 (hereinafter referred to as

‘the Rules’ for short) has been issued by the Registrar of

Companies, by which the petitioners have been called

upon to explain as to why the proposed action under

Rule 10(6) of the Rules being not taken to invalidate

five DIR-12 and MGT-7 and mark them as defective. In

the aforesaid factual background, the petitioners have

approached this Court.

SUBMISSIONS:

8. Learned Senior Counsel for the petitioners

submitted that in the impugned show cause notice,

ingredients of Rule 10(6) are conspicuously absent and

therefore, initiation of proceeding under Rule 10(6) of

the Rules is per se without jurisdiction. It is further

submitted that the show cause notice is wholly without

jurisdiction and the same has been issued with

premeditation. It is also submitted that impugned show

cause notice, in the instant case, is a mere empty

formality and the Registrar of Companies who is acting

on the dictates of higher officers, has already prejudged

 10

the issues. It is also urged that when a statute confers

a power on authority to do a certain thing in a certain

way, the same should be done in that way or not at all

and a writ of prohibition would lie when an inferior

tribunal or an executive authority exercising quasi

judicial powers exceeds its jurisdiction. In support of

aforesaid submissions, reliance has been placed on

decisions of Supreme Court in the case of

‘COMMISSIONER OF POLICE, BOMBAY VS.

GORDHANDAS BHANJI’, AIR 1952 SC 16, ‘M/S

EAST INDIA COMMERCIAL COMPANY LTD.

CALCUTTA AND ANOTHER VS. COLLECTOR OF

CUSTOM’, AIR 1962 SC 1893, ‘WHIRLPOOL

CORPORATION VS. REGISTRAR OF TRADEMARKS

MUMBAI & OTHERS’, (1998) 8 SCC 1, ‘BABU

VERGHESE AND OTHERS VS. BAR COUNCIL OF

KERALA AND OTHERS’, (1999) 3 SCC 422, ‘M/S

MOTHER CARE (INDIA) LIMITED (IN

LIQUIDATION) REP. BY THE OFFICIAL

LIQUIDATOR, BANGALORE VS. PROF

 11

P.RAMASWAMY P.AIYAR’, ILR 2004 KAR 1081,

‘SIEMENS LTD. VS. STATE OF MAHARASHTRA AND

OTHERS’, (2006) 12 SCC 33, ‘ORYX FISHERIES

PRIVATE LIMITED VS. UNION OF INDIA AND

OTHERS, (2010) 13 SCC 427, and ‘STATE OF

MADHYA PRADESH AND OTHERS VS. SANJAY

NAGAYACH AND OTHERS’, (2013) 7 SCC 25.

9. Learned Senior counsel for respondent No.5

pointed out that by a communication dated 13.03.2019,

no direction has been issued to the Registrar of

Companies and the impugned show cause notice dated

28.03.2019 has been issued in utter disregard to the

instructions issued by the Ministry of Corporate Affairs.

It is further submitted that the impugned show cause

notice does not suffer from any infirmity and Registrar

alone under the provisions of the Companies Act, 2013

has the authority to issue the impugned notice.

Therefore, the Registrar has jurisdiction to issue the

 12

impugned notice. In support of aforesaid submission,

decision of Supreme Court in ‘SMT.UJJAM BAI VS.

STATE OF U.P. AND ANOTHER’, AIR 1962 SC 1621,

‘HARPAL SINGH VS. STATE OF PUNJAB’, (2007) 13

SCC 387 and the decision of the Supreme Court in

‘STATE OF UTTAR PRADESH VS. SHRI BRAHM DATT

SHARMA AND ANOTHER’, AIR 1987 SC 943. It is

further pointed out that in the reply, which was

submitted by the petitioners to the earlier show cause

notice, no objection with regard to jurisdiction was

taken. It is further submitted that show cause notice

issued by Registrar of Companies was challenged in civil

suit, which was withdrawn on 05.05.2017.

10. It is also submitted that the powers given to

the Registrar under Rule 10(6) of the Rules are

statutory in nature and the show cause notices neither

suffer from any inherent lack of jurisdiction nor the

same are premeditated. It is also argued that the show

cause notices have not been issued acting on the

 13

dictates of the Ministry of Corporate Affairs. It is also

submitted that the petitioners have an alternate and

efficacious remedy under Sections 58, 59, 241 and 242

of the Companies Act, 2013. It is also pointed out that

the petitioners had filed a writ petition viz.,

W.P.No.52446/2017 for quashment of the proceedings

before the National Company Law Tribunal, which was

initiated by respondent No.5 . However, the aforesaid

writ petition was withdrawn by the petitioner on

20.11.2017. Lastly, it is urged that the jurisdiction of

the civil courts with regard to the disputes under the

Companies Act, 2013 is barred. In support of aforesaid

submissions, reliance has been placed on decisions of

the Supreme Court in the case of ‘STANDARD

CHARTERED BANK AND OTHERS VS. DIRECTORATE

OF ENFORCEMENT AND OTHERS’, (2006) 4 SCC

278, ‘NIVEDITA SHARMA VS. CELLULAR

OPERATORS ASSOCIATION OF INDIA AND

OTHERS’, (2011) 14 SCC 337 and decisions of this

Court in ‘SHASHI PRAKASH KEMKA (DEAD)

 14

THROUGH LRS AND ANOTHER VS. NEPC MICON

(NOW CALLED NEPC INDIA LTD.) AND OTHERS,

CIVIL APPEAL NOS.1965-66/2014’, and ‘SUDHIR

ANGUR AND OTHERS VS. REGISTRAR OF

COMPANIES AND OTHERS’, W.P.NO.52446/2017

AND CONNECTED CASES.

11. Learned Senior Counsel for respondent No.6

while adopting the submissions made by Learned Senior

Counsel for respondent No.5 submitted that respondent

No.5 was in judicial custody for a period from

05.02.2016 till 03.03.2016. The petitioners filed

O.S.No.1094/2016, in which an ad-interim order of

injunction was granted on 06.02.2016 and thereafter, a

meeting of the Board was convened on 11.02.2016, in

which resolution was passed. It is further pointed out

that after passing of the resolution; the aforesaid civil

suit was withdrawn. Learned Senior Counsel has also

invited the attention of this court to Section 168(1) of

the Companies Act, 2013 and Rule 16 of the Companies

 15

Appointment and Qualification of Directors Rules, 2014.

It is further submitted that as required by the aforesaid

provision resignation in Form viz., DIR-11 was never

submitted and the petitioners did not respond to the

show cause notice dated 05.05.2017. Mr.A.S.Ponanna,

Learned Senior Counsel has adopted the submissions

made by Learned Senior Counsel for respondent Nos.5

and 6 and has submitted that the Registrar alone can

decide the dispute.

12. Learned counsel for Registrar of Companies

submitted that no writ of prohibition can be issued for

discharging the statutory function and no case is made

out for quashment of show cause notice. It is further

submitted that statutory functions have been cast upon

the Registrar and they are not adjudicatory in nature. It

is also submitted that the Ministry of Corporate Affairs

has asked the petitioners to perform the statutory

duties only and no directions have been issued to the

Registrar of Companies. Learned counsel has also

 16

invited the attention of this Court to para 31 of

statement of objections filed on behalf of Registrar of

Companies.

13. By way of rejoinder reply, Learned Senior

Counsel for the petitioners submitted that the contents

of the impugned notice do not call upon the petitioners

to rectify any defect, therefore, do not fall within the

purview of Rule 10(6) of the Rules. It is argued that

allegations of fraud and forgery cannot be examined by

Registrar of Companies and he should take an action in

the matter as per the order of injunction passed by the

Trial Court or stay his hands off. It is also pointed out

that the dispute between the parties is being

adjudicated before the civil court. Learned Senior

Counsel has also produced copy of Form DIR-12 and

has submitted that if documents mentioned therein are

not annexed, then only it can be said to be incomplete.

It is also submitted that the decision relied upon by the

learned counsel for the petitioner in SHASHI PRAKASH

 17

KEMKA supra has no application to the fact situation of

the case and the civil suit is maintainable. It is also

urged that the civil suit filed by the petitioner is

maintainable.

LEGAL PRINCIPLES:

14. Before proceeding further, it is apposite to

take note of certain well settled legal principles. The

expression ‘jurisdiction’ has a well settled legal

connotation. It means authority to bear or determine

the controversy. The concept of jurisdiction is the

power to hear and determine the cause. The Supreme

Court in ‘ANOWER HUSSAIN VS. AJOY KUMAR’, AIR

1965 SC 1651 has held that the expression

‘jurisdiction’ does not mean power to do or order the act

impugned, but generally the authority of Judicial Officer

to act in the matter. It has been held that expression

‘jurisdiction’ means the entitlement to enter upon the

enquiry in question [See:‘M.L.SETHI VS. R.P.KAPUR’,

AIR 1972 SC 2379]. The Supreme Court while dealing

with the expression ‘jurisdiction’ in celebrated case of

 18

‘A.R.ANTULAY VS. R.S.NAYAK’, AIR 1988 SC 1531

held that jurisdiction is the authority or power of the

court to deal with the matter and make an order

carrying the binding force.

15. The scope of interference with regard to

show cause notices is well settled by catena of decisions

of the Supreme Court. If a show cause notice is issued

under a statutory provision, the courts should be

reluctant to interfere with the notice at that stage unless

the notice is shown to have been issued palpably

without any authority of law. [See: ‘STATE OF UTTAR

PRADESH VS. BRAHMA DUTTA SHARMA AND

ANOTHER’, AIR 1987 SC 943]. It has further been

held that unless show cause notice is ex facie a nullity

or is totally without jurisdiction i.e., where the

commencement of the proceeding itself is unauthorized,

at that stage, it should be shown that authority had no

power or jurisdiction to enter upon enquiry and in all

other cases, the party must respond to the show cause

 19

notice. [See:’EXEUCTIVE ENGINEER, BIHAR

HOUSING BOARD VS. RAMESH KUMAR SINGH’,

(1996) 1 SCC 327]. In ‘UNION OF INDIA VS.

HINDUSTAN DEVELOPMENT CORPORATION LTD.,’,

(1998) 9 SCC 576, it has been that where the show

cause notice requires investigation of facts, the Court

should not interfere and the matter should be decided

by the authorities. It has been held where the authority

lacks jurisdiction, show cause notice can be quashed.

[See:’UNION OF INDIA VS. HINDALCO

INDUSTRIES’, (2003) 5 SCC 194]. Similar view has

been taken in ‘DIVISIONAL FOREST OFFICER VS.

M.RAMLINGA REDDY’, (2007) 9 SCC 286 and

‘UNION OF INDIA VS. VICO LABORATORIES’,

(2007) 13 SCC 270. It has further been held that

High Court should be extremely circumspect while

dealing with a writ petition, in which a challenge is

made to the show cause notice. [See:’COMMISSIONER

OF CUSTOMS VS. COVAI RAJA AND METALS

(INDIA) (P) LTD.,’, (2018) 2 SCC 398].

 20

RELEVANT STATUTORY PROVISIONS :

16. At this stage, certain relevant statutory

provisions, which have a material bearing on the

controversy involved in this petition may be noticed.

Section 58 of the Companies Act, 2013 provides that if a

Private Limited Company by shares refuses, to register

the transfer of or transmission by operation of law or

right to any securities or interest of the members in a

company, it shall send notice of the refusal to the

transferor and the transferee, and the transferee may

appeal to the Tribunal against the refusal. Section 59 of

the Act deals with rectification of registration of

members. Chapter XVI of the Act deals with prevention

of oppression and mismanagement. Section 241

provides for an application to the tribunal in cases of

relief to the oppression etc., whereas, Section 242 of

the Act deals with powers of the Tribunal. In exercise of

powers conferred under Sections 396, 398, 399, 403

and 404 read with Section 469 of the Act, the Central
 21

Government has framed the Rules, which have come

into force with effect from 01.04.2014 viz., the

Companies (Registration Offices and Fees) Rules, 2014.

Rule 2(l) defines the expression ‘straight through

process’ to mean the process, in which e-form is

approved through system without manual interruption.

17. Rule 5 of the Rules deals with powers and

duties of the Registrar, whereas, Rule 8 of the Rules

deals with authentication of the documents. Rule 10(6)

of the Rules, which is relevant for the purposes of the

controversy involved in the petition reads as under:

In case the Registrar finds any e-form

or document filed under Straight Through
Process as defective or incomplete in any
respect, at any time suo motu or on receipt
of information or complaint from any source
at any time, he shall treat the e-form or
document as defective in the electronic
registry and shall also issue a notice pointing
out the defects or incompleteness in thee-
Form or document at the last intimated e-
 22

mail address of the person or the company

which has filed the document, calling upon
the person or company to file the e-form or
document afresh along with fee and
additional fee, as applicable at the time of
actual re-filing, after rectifying the defects or
incompleteness within a period of thirty days
from the date of the notice.

ANALYSIS:

18. After having noticed the well settled legal

propositions and the relevant statutory provisions, the

facts of the case in hand may be examined. It is

pertinent to note that Registrar of Companies had

issued a show cause notice on 07.05.2015 inter alia on

the ground that the office of the Registrar of Companies

has received the credible information that certain

persons have fraudulently obtained Digital Signature

Certificate in the name of Madhukar G Angur by

submitting forged documents and have used the same

for appointing Mr.Abhay Govind Chebby and Mr.Prakash

Siddappa as Directors of Alliance Business School with

 23

effect from 04.03.2015. The petitioners were therefore;

advised to submit the explanation as to why the three

DIR-12 Forms referred to in the show cause notice

should not be marked invalid. The petitioners on receipt

of the aforesaid notice submitted a reply on 02.06.2015,

the relevant extract of which reads as under:

“We understand that there are certain

technical issues with respect to the
following three e-form No.DIR-12s filed on
MCA PORTAL ON 13.04.2015.
1. SRN No.C49752926 in respect of
e-form No.DIR-12 filed on
13.04.2015.
2. SRN No.C49762115 in respect of
e-form No.DIR-12 filed on
13.04.2015.
3. SRN No.C49762644 in respect of
e-form No.DIR-12 filed on
13.04.2015.
Therefore, in the larger interest of all, we
hereby give our consent for marking the
above referred three SRN Nos. as
“INVALID”.”
 24

On the basis of the aforesaid reply, the aforesaid

DIR-12 forms were invalidated by the Registrar on

08.06.2015 and 09.06.2015. Thereafter, another notice

was sent by the Registrar of Companies on 05.05.2017,

which was based on the complaint made by respondent

No.5. By the aforesaid show cause notice, the

petitioners were informed that the office of the Registrar

of Companies has received two complaints dated

25.4.2016 and 26.04.2016 from respondent No.5 for

invalidating DIR-12 forms and to mark them as

defective. The petitioners were asked to offer an

explanation within 15 days, failing which suitable action

shall be taken. However, the petitioners did not

respond to the aforesaid notice and instead filed

O.S.No.4202/2016.

19. The respondent No.5 thereafter again made

complaints on 25.03.2015, 20.04.2015, 28.04.2015,

08.02.2016, 14.03.2016, 25.04.2016, 26.04.2016,

24.05.2016, 20.07.2016, 18.08.2016, 02.11.2016,

 25

26.10.2017, 23.08.2018 and 08.09.2018 to Registrar of

Companies. Thereafter show cause notice was issued on

28.03.2019 inter alia on the ground that the petitioners

have fraudulently changed the Directorship of the

company by using fabricated and forged documents

including fraudulently obtaining forged Digital Signature

and have used the same to include their names as

Directors of Companies. The petitioners were called

upon to explain within 15 days as to why the action

under Rule 10(6) of the Rules being not taken to

invalidate five DIR-12 and MGT-7 and mark them as

defective. It is pertinent to note that the petitioners did

not challenge the earlier show cause notices dated

07.05.2015 and 05.05.2017. In fact, the show cause

notice dated 05.05.2017 has not been challenged by the

petitioners even till today.

20. The Registrar of Companies is vested with

power under Rule 10 of the Rules to issue the impugned

show cause notice. The show cause notice cannot be

 26

said to be per se without jurisdiction as Registrar of

Companies has the power to determine the questions

raised in the show cause notice. The show cause notice

also does not appear to have been issued with any

premeditation as Ministry of Corporate Affairs has

directed the Registrar of Companies to perform his

statutory duties. It is pertinent to note that since, 2015

the respondent No.5 has been making complaints.

However, no effective action in the matter has been

taken by the Registrar of Companies nearly for a period

of four years. In other words, he has failed to perform

his statutory duties. In any case, the Registrar of

Companies is vested with the authority to issue the

notice and has to administer the provisions of the Act

and the Rules. The Registrar of Companies is entitled to

enter upon the enquiry in question initiated under Rule

10 of the Rules. He cannot be restrained from

discharging his statutory functions. The impugned show

cause notice cannot be said to be ex facie nullity or

totally without jurisdiction and the commencement of

 27

the proceeding by the Registrar cannot be said to be

unauthorized. The Supreme Court in the case of

COMMISSIONER OF CUSTOMS supra has held that

High Court should be extremely circumspect while

dealing with a writ petition, in which challenge is made

to a show cause notice. The petitioners in the fact

situation of the case are required to respond to the

show cause notice issued to them and after adjudication

are at liberty to take recourse to such remedy as may

be available to them in law.

21. So far as submission made by Learned Senior

Counsel for the petitioners that impugned show cause

notice is per se without jurisdiction does not deserve

acceptance, as the issue whether the forms in question

are defective or incomplete can be adjudicated by the

Registrar of Companies. The petitioners are well within

their rights to raise an objection before the Registrar

that ingredients of Rule 10(6) of the Rules are absent

and the Registrar is even competent to decide the issue

 28

with regard to jurisdiction as well. Therefore, the

submission that show cause notice is per se without

jurisdiction is sans substance. The impugned show

cause notice though makes a reference to the Ministry

and the Regional Director and refers to the

communication dated 13.03.2019. Therefore, it is

necessary to quote the relevant extract of the

communication dated 13.03.2019:

“Accordingly, as directed by the

Ministry, you are advised to take
appropriate action to mark the e-forms
DIR-12 (5 Nos.) and MGT-7 filed during
February 2016 to April 2016 as defective
and to rectify the irregular filing made in
the MCA portal as per the case.”

22. Thus, it is evident that the Registrar of

Companies has merely been asked to perform his

statutory duties as per the case and to take appropriate

action. Therefore, it cannot be said that the impugned

show cause notice has been issued at the dictates of the

Ministry of Corporate Affairs. It is pertinent to mention,

 29

that on previous occasion also the Registrar of

Companies had issued two notices dated 07.05.2015

and 05.05.2017 without any reference to the

instructions of the Ministry of Corporate Affairs.

Therefore, the contention of the petitioners that the

action has been taken on the dictates of Ministry of

Corporate Affairs does not deserve acceptance.

23. So far as submission made by learned

counsel for the respondents that the civil suit filed by

the petitioners is not maintainable is concerned, the

same need not be gone into in this proceeding, which

deals essentially with the validity of the show cause

notice issued to the petitioners under Rule 10 of the

Rules and it will be open to the respondents to raise the

aforesaid issue in the civil suits, if so advised.

24. In view of preceding analysis, no case for

interference is made out at this stage. In case, the

petitioners have not already filed reply to the show

cause notice, they shall do so positively within a period

 30

of two weeks from the date of receipt of certified copy

of the order passed today and thereupon the Registrar

of Companies after affording an opportunity of hearing

to all necessary parties shall decide the objections,

which may be preferred by the petitioners including the

issue with regard to the jurisdiction by a speaking order

within two months from the date of receipt of

objections, which may be filed by the petitioners bearing

in mind the interim orders of injunction granted by the

Civil Courts. It is made clear that this court has not

expressed any opinion on the merits of the case.

Accordingly, the petitions are disposed of.

Sd/-
JUDGE

SS