Gujarat High Court
Nimain Charan Biswal vs Registrar Of Companies on 20 April, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/4497/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4497 of 2017
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NIMAIN CHARAN BISWAL....Petitioner(s)
Versus
REGISTRAR OF COMPANIES, GUJARAT & 3....Respondent(s)
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Appearance:
PARTY-IN-PERSON, PERSONAL CAPACITY for the Petitioner(s) No. 1
MR DEVANG VYAS, ADVOCATE for the Respondent(s) No. 1-3
GOVERNMENT PLEADER for the RESPONDENT(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 20/04/2017
ORAL ORDER
1. Heard Mr. Biswal in person.
2. In the affidavitinreply filed by the Registrar of Companies, it is contended by the respondent authority that the petitioner was a Director/Managing Director in the Companies which are mentioned in the affidavit. It is the case of the respondent authority that the petitioner has resigned from the Company by filing eform DIR11 with the Registrar of Companies. However, because of the reason that DIR12 is not filled by the Company, the requirements of Section 168(1) of the Companies Act, 2013 are not fulfilled and therefore, the Page 1 of 3 HC-NIC Page 1 of 3 Created On Thu Jun 29 23:57:50 IST 2017 C/SCA/4497/2017 ORDER request of the petitioner is kept pending. Sub section (2) of Section 168 of the Act provides that resignation of Director shall take effect from the date on which the notice is received by the Company or the date, if any, specified by the Director in the notice, whichever is later. It is, however, not indicated by the respondent authority that under which Rule, the form in form of DIR12 is necessary to be filed by the Company.
3. Considering the provisions of subsection (2) of Section 168 of the Act of 2013, the respondent authority will have to make it clear by way of a further affidavit as to why the provisions of Section 168(2) of the Act, which clearly provides for the outer limit of the resignation by a Director not adhered to, in case of the petitioner. Such clarification by way of a further affidavit shall be filed by the respondent authority.
4. Mr. Biswal, partyinperson has also further relied upon the Companies (Appointment and Qualification of Directors) Rules, 2014, wherein Rule 16 provides that where a Director resigns from his office, he shall within a period of thirty days from the date of resignation, forward to the Registrar a copy of his resignation along with reasons for the resignation in Form DIR11 along with the prescribed fees, which has already been submitted by the petitioner even as per the Page 2 of 3 HC-NIC Page 2 of 3 Created On Thu Jun 29 23:57:50 IST 2017 C/SCA/4497/2017 ORDER affidavit of the respondent. This Court even from the Rules of 2014 does not find that such collateral requirement is found. Rule 15 of the said Rules provides for notice of resignation of Director, which interalia provides that the Company shall within thirty days from the date of receipt of notice of resignation from a Director, intimate the Registrar in Form DIR12 and post the information on its website, if any. In prima facie opinion of this Court, there is nothing to suggest that the Director cannot independently resign on his own. Rules 15 and 16, though relate to resignation of a Director, do not provide that DIR11 and DIR12 are to be filled in simultaneously for consideration of resignation of a Director. The aforesaid aspects will have to be made clear by way of an affidavit. It is, however, clarified that this order shall not have any bearing on the criminal proceedings which are pending before this Court as well as the Trial Court.
S.O. to 8.6.2017.
(R.M.CHHAYA, J.) mrp Page 3 of 3 HC-NIC Page 3 of 3 Created On Thu Jun 29 23:57:50 IST 2017