IMPORTANT POINT
The resignation of a director takes effect as per Section 168(2) of the Companies Act, 2013, and non-compliances should not prevent the removal of the director's name.

JUDGMENT :

G. S. KULKARNI, J.

RULE, made returnable forthwith. Respondents waive service. By consent of the parties, heard finally.

2. This Petition under Article 226 of the Constitution of India, is filed by the Petitioner, praying for a relief against Respondent No.1 – Registrar of Companies, Mumbai, for a direction to remove the name of the Petitioner as a Director of Respondent No.4-company – “Local Search Solution Pvt. Ltd., Mumbai”.

3. There are two substantive prayers made in the Petition, being prayer clauses (a) & (b) which read thus:-

“(a):- this Hon’ble Court may be pleased to issue a Writ of Mandamus or any other appropriate Writ or direction directing the Respondent No.1 to remove the name of Petitioner as a Director of Respondent No.4 with effect from 01.09.2021 i.e. the date of resignation;

(b) this Hon’ble Court may be pleased to issue a Writ of Mandamus or any other appropriate Writ or direction directing the Respondent No.1 to initiate appropriate action/steps against Respondent No.4 for default in complying with the provisions of the Companies Act, 2013 regarding resignation of the Director.”

4. The case of the Petitioner is that on 14 August 2020 the Petitioner had given consent for appointment as a Director of respondent No.4 as also respondent No.5 who is a foreign director gave her consent for appointment as a Director on 19 August 2020.

5. The Petitioner contends that the business of the Company never commenced. It is contended that such consent was given during Covid-19 pandemic. In these circumstances, Petitioner tendered his resignation on 24 August, 2021 which was to take effect from 1 September, 2021. In the resignation letter addressed to the Board of Directors of Respondent No.4, the Petitioner categorically stated that the resignation letter may be acknowledged and necessary forms be arranged to be submitted with the office of Registrar of Companies, Mumbai. The Petitioner has contended that on receipt of such resignation letter, the Board of Directors passed a resolution by way of circulation dated 1 September 2021, thereby accepting the resignation of the Petitioner. Resolution to that effect reads thus : -

“4. To take note of Resignation letter tendered by Mr. Rajiv Sharma to the Board of Directors of the Company with effect from 1st September. 2021:

RESOLVED THAT pursuant to the provisions of Section 168 of the Companies Act, 2013 read with Companies (Appointment and Qualification of Directors) Rules, 2014, the resignation tendered by Mr. Rajiv Sharma from the office of Directors of the Company with effect from 1st September, 2021 be and is hereby noted."

"RESOLVED FURTHER THAT intimation of Form DIR-12 signed by one of the Directors be filed with Registrar of Companies, Mumbai."

"RESOLVED FURTHER THAT Mrs. Vidya Pawar, Mr. N D Satish, Mr. Ashwin Dhawle or Ms. Della Santhosh T the Company Secretaries in Practice, be and are hereby authorised to certify the necessary e-form as may be required to be filed by the Company with the Registrar of Companies, Mumbai."

By Order of the Board

For LOCAL SEARCH SOLUTIONS PRIVATE LIMITED

LOCAL SEARCH SOLUTIONS PRIVATE LIMITED”

6. The Petitioner has annexed documents to show that the business of the Company could never commence. As nothing was heard from the Company in regard to the steps being taken to complete the formalities of resignation of the Petitioner as a director, the petitioner addressed a letter to the Registrar of Companies, inter alia, informing that on 24 August 2021, the petitioner had tendered his resignation from the Directorship of Company, which was to take effect from 1 September 2021, and the same being approved by the Board of Directors in a meeting held on 1 September 2021. Petitioner also stated that he was unable to file e-Form DIR-11 as the Company had not filed e-form INC 20A in regard to commencement of its business. The petitioner, therefore, requested that his name be removed from the Directorship of Respondent No.4-Company with immediate