Calcutta High Court (Appellete Side)
Ashish Kumar Agarwal vs Union Of India And Another on 8 March, 2021
24
08.03.2021
TN
WPA 5731 of 2021
(Via video conference)
Ashish Kumar Agarwal
Vs.
Union of India and another
Mr. Shashwat Nayak,
Mr. Sarangam Chakraborty,
Mr. Sumit Biswas,
Mr. Rajashree Bhowmick,
Mr. R. Dubey
... for the petitioner.
Mr. Ajay Chaubey,
Ms. Hema Mukherjee,
Ms. Shakshi Rathi
...for the respondents.
Certain interesting questions have been raised by learned counsel for the petitioner as regards the effects and interpretation of Sections 164 and 167 of the Companies Act, 2013. It is submitted that, although Section 167 of the Act contemplates specifically the vacating of the office of Director in respect of all other companies than the alleged defaulting company, the language used in Section 164 in that context is that the Director shall not be eligible to be re-appointed as a Director of 2 that company or appointed in other companies for a period of five years from the date on which the said company fails to do so. It is, thus, argued that there is no contemplation of the Director vacating the office of Directorship in respect of the defaulting company in either of the two aforementioned provisions. It is further pointed out that, in this context, Rule 11 of the Companies (Appointment and Qualification of Directors) Rules, 2014 becomes relevant. The said Rule provides for cancellation or surrender or deactivation of DIN. It is thus submitted that, since there is a specific provision regarding deactivation of DIN in Rule 11 of the 2014 Rules, unless the criteria set out therein are satisfied, there cannot be automatic deactivation of DIN merely by virtue of Sections 164 and 167 of the Companies Act, 2013. Since such question raises a strong prima facie case in favour of the petitioner, the writ petition is required to be heard on merits.
The operation of the decision deactivating the DIN of the petitioner shall 3 remain stayed till April 30, 2021 or until further orders, whichever is earlier.
The matter will next be enlisted for hearing on April 13, 2021 along with other similar matters.
(Sabyasachi Bhattacharyya, J.)