The operation of the 2014 Amendment to Section 164(2) and the 2018 Amendment to the proviso of Section 167(1)(a) of the Companies Act, 2013 are prospective in nature.

JUDGMENT

Sabyasachi Bhattacharyya, J. - The Court:

1. The petitioner was a director of a Private Limited Company, namely, Lambodar Vinimay Private Limited, incorporated on January 27, 2009.

2. Vide public notice no. ROC/WB/STK/2017/1 dated April 7, 2017, it was declared that the name of the said company would stand removed/struck off from the Register of Companies within 30 days from the date of the notice, under Section 248(1) of the Companies Act, 2013 (hereinafter referred to as "the 2013 Act"). Accordingly, the petitioner's Director Identification Number (DIN) and Digital Signature Certificate (DSC) were deactivated under Section 164(2) of the 2013 Act, with effect from November 1, 2016 till October 3, 2021. The present writ petition has been preferred, challenging such disqualification of the petitioner by the impugned notice dated April 7, 2017.

3. Learned counsel for the petitioner argues that sub-section (2) of Section 164 of the 2013 Act came into force from April 1, 2014 and can apply only prospectively. Thus, the three financial years, non-filing of the annual return and financial statement of the company for which would make the petitioner liable for deactivation of his DIN, would commence from April 1, 2014. The relevant three financial years would be 2014- 2015, 2015-2016 and 2016-2017, covering the period from April 1, 2014 to March 31, 2017. Hence, it is argued, the deactivation of the DIN with effect from November 1, 2016 was patently illegal.

4. The petitioner further argues that the last date for filing financial statements for the third financial year was October 30, 2017 (with regular fees) and July 27, 2018 (with additional fees) as per Section 403 of the 2013 Act, which provides for an additional period of 270 days. Thus, in any event, no question of disqualification of the petitioner arose before the expiry of the said period.

5. Learned counsel for the petitioner next submits that the proviso to Section 167(1)(a) was inserted by the Amendment of Act of 2018 with effect from May 7, 2018. The said provision reads as follows:

"Section 167: Vacation of office of director - (1) The office of a director shall become vacant in case -

(a) he incurs any of the disqualifications specified in section 164:

Provided that where he incurs disqualification under sub-section (2) of section 164, the office of the director shall become vacant in all the companies, other than the company which is in default under that sub-section;

....                             ....                             ....                             ...."

6. It is contended that such proviso would be applicable to companies whose names are struck off only after the introduction of the 2018 Amendment, that is, after May 7, 2018 and could not be invoked in the case of the petitioner.

7. The proviso, prior to the 2018 Amendment, read as follows:

"Provided that the office shall be vacated by the director even if he has filed an appeal against the order of such Court;" and did not contemplate the vacancy of the office of the director in respect of companies other than the defaulting company.

8. Learned counsel places reliance on Keshavan Madhava Menon vs. State of Bombay, (1951) AIR SC 128 , to submit that every statute is presumed to be prospective, unless the contrary is specifically stipulated. Thus, the operation of the amended Section 164(2) and the amended proviso to Section 167(1)(a) of the 2013 Act would not be operative prior to April, 2014 and May, 2018 respectively.

9. Learned counsel for the petitioner contends that a conjoint reading of Sections 92, 96, 137 and 403 of the 2013 Act makes it clear that a copies of the annual returns of the company and of the financial statements thereof have to be filed within 60 days and 30 days respectively from the date on which the Annual General Meeting (AGM) is held. The AGM has to be held once in the financial year, within six months from the date of closing of the financial year, latest before exp