The main legal point established is that the disqualification of directors under Section 164(2)(a) of the Companies Act, 2013 extends to all companies where the director is appointed, except the defaulting company.

1. This order will govern the disposal of WP Nos.11258/18, 7527/18, 11261/18 & 11217/18 since the issue involved in all these petitions is identical.

2. For convenience the facts are being noted from WP No.11258/2018.

3. By this writ petition the petitioners have challenged Annexure P/1 which is the list of disqualified directors under Section 164(2)(a) of the Companies Act, 2013 (for short “the Act”) issued by the ROC, Gwalior as also Annexure P/8 showing the status of the petitioner’s DIN as “disqualified by ROC under Section 164(2)” of the Act.

4. The brief facts are that the petitioners are the directors of M/s. ADI Softech Pvt. Ltd. They are also the directors of other four companies, a list of which is filed as Ex.P/7. The Registrar of Companies had issued the notice dated 10.3.2017 for striking off the name of M/s. ADI Softech Pvt. Ltd. and thereafter he had passed the order and published the notice in Form No.STK-7 under Section 248(5) of the Act dated 9.6.2017 striking off the name of M/s ADI Softech Pvt. Ltd. along with many other companies and declaring them as dissolved. Further case of the petitioners is that they had filed the annual returns and balance sheets from the date of incorporation of above company till financial year 2012-13 but subsequently the company became non operational and could not carry out any profitable business, hence annual returns and balance sheets were not filed after 2013 and that they could not avail the benefit of Condonation of Delay Scheme, 2018 (CODS 2018) and the action of the respondent in suspending the petitioner’s DIN is unjust and illegal.

5. It is also the case of the petitioners that they are Directors of as many as five companies and the default has been committed by only one company i.e. ADI Softech Pvt. Ltd. but on account of the action taken under Section 164(2) of the Act now the petitioners are being disqualified to act as Director in all other four companies. A further grievance has been raised that since the DIN status has been shown to be “as disqualified under Section 164(2)”, therefore, now the petitioners cannot act or become director of any of the company for a period of 5 years. The stand of the petitioners is that they want to file the previous balance sheets of the ADI Softech Pvt. Ltd. with ROC and want to close down the said company so that they would be able to utilize their DIN and act as Director in other companies.

6. Learned counsel appearing for the petitioner has advanced following arguments:-

i. Learned counsel submits that there is no provision in the Act providing for suspension of DIN and that under Section 164(2) of the Act disqualification is only in respect of reappointment as a director of that company or appointment in any other company for 5 years, but there is no disqualification in respect of all the existing directorship.

ii. He has also submitted that under Rule 11 of the Companies (Appointment and Disqualification) Rules, 2014 the conditions of cancellation or deactivation of DIN have been mentioned and the petitioners case does not fall under any of those conditions. He has also submitted that Section 248(2) gives a right to the petitioner to move to the Registrar for striking off the name of the company but by virtue of the impugned action that right has been taken away.

iii. He has also submitted that in terms of the proviso to Section 167(1)(a) the disqualification is only in respect of the defaulting company, therefore, on the basis of the said disqualification petitioner’s right to act as director in other companies cannot be closed. He has further submitted that Section 152 of the Act provides for issuance of DIN and Rule 11 provides for cancellation, surrender or deactivation of DIN and apart from these two provisions there is no other provision providing for the suspension of DIN, hence by invoking the provisions of Section 164(2) of the Act, petitioner’s DIN cannot be suspended.

7. Shri Dharmendra Chelawat, learned counsel for