THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA WRIT PETITION No.22913 OF 2025

ORDER:

This Writ Petition is filed to declare the action of respondent No.3 in not performing his duties under section 398(f) of the Companies Act, 2013 and rejecting the application made by the petitioner-Company vide Form No.DIR-12 G.A.R.7 receipt, Dated 28.12.2024, SRN:AB2286943, Bharatkosh order ID:1-16183400392, seeking to update the changes in the Board of Directors of the Company in the records and on the Ministry of Corporate Affairs website in compliance of Section 170(2) of the Companies Act, 2013 in spite of the written representation dated 09.01.2025 as being illegal, arbitrary, unjust and unconstitutional.

2. Heard Sri A. Raghuram Mahadev, learned counsel for petitioner and Sri V.T. Kalyan, learned Standing Counsel for the Central Government, for the respondents. Perused the record.

3. When the matter is taken up, learned counsel for both the parties jointly submitted that the issue raised in this Writ Petition is squarely covered by the order dated 16.06.2022 passed by this Court in W.P.No.28197 of 2019 and therefore, the same order may be passed in this writ petition as well. The operative portion of the said order reads as under:

“9. Considering the submission of the learned counsel for the petitioner and the learned Additional Solicitor General of India, this court is of the opinion that mere pendency of such complaints shall not be a ground to hold the processing/acceptance of Form DIR-12 filed by the petitioner for cessation of directorship of 3rd respondent and the inaction on the part of the R1/Registrar of Companies by withholding processing/accepting the DIR-12 was arbitrary and unreasonable. Due to the inaction on the part of the 1st respondent, the petitioner company was given ACTIVE Non Compliance status for no fault of them leading to imposition of huge penalties and crippling difficulties.

10. The non registration of cessation of directorship of 3rd respondent by way of Form DIR-12 by the Registrar of the Companies was in contravention of the provisions of Section 398 of the Companies Act, 2013. Section 398(f) of the Companies Act, 2013 lays down the provisions relating to filing of the documents in electronic form with the Registrar of the Companies. It reads as under:

“398. Provisions relating to filing of applications, documents, inspection, etc., in electronic form.— (1) Notwithstanding anything to the contrary contained in this Act, and without prejudice to the provisions contained in section 6 of the Information Technology Act, 2000 (21 of 2000), the Central Government may make rules so as to require from such date as may be prescribed in the rules that—

(f) the Registrar shall register change of registered office, alteration of memorandum or articles, prospectus, issue certificate of incorporation, register such document, issue such certificate, record the notice, receive such communication as may be required to be registered or issued or recorded or received, as the case may be, under this Act or the rules made thereunder or perform duties or discharge functions or exercise powers under this Act or the rules made thereunder or do any act which is by this Act directed to be performed or discharged or exercised or done by the Registrar in the electronic form in such manner as may be prescribed.”

11. A perusal of the above provision would clarify that the Registrar of the Companies is under obligation to register the entries envisaged in the aforesaid sub- Section. The word ‘shall’ used in Section 398 (1)(f) of the Companies Act, 2013 denotes that, it is mandatory for the Registrar of Companies to register, process and accept such forms. Filing of Form DIR12 was procedural in nature and the same was done pursuant to appointment or cessation or change in designation of a director. The petitioner company, through its Board of Directors and Shareholders was well within its rights to appoint new directors or to confirm the Additiona