Madras High Court
J.Jayakrishnan vs The Registrar Of Companies on 15 September, 2014
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.09.2014
CORAM:
THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN
W.P.Nos.33692 to 33694 of 2013 and 3103 of 2014
and
Connected Miscellaneous Petitions
J.Jayakrishnan .. Petitioner in all W.Ps.
Kamatchi Jayakrishnan .. Petitioner in 3103 of 2014
vs
1. The Registrar of Companies,
Tamil Nadu, Shastri Bhavan,
Nungambakkam, Chennai.
2. The Assistant Registrar of Companies,
Tamil Nadu, Shastri Bhavan,
Nungambakkam, Chennai. .. Respondents in W.P.Nos.33692 & 33693 of 2013
3. T.Ramesh .. Respondent in all the WPs
4. The STATE OF TAMIL NADU
REP. BY ITS SECRETARY TO GOVERNMENT
COMMERCIAL TAX AND REGISTRATION SECRETARIAT
FORT ST. GEORGE CHENNAI
5 THE INSPECTOR GENERAL OF
REGISTRATION 120 SANTHOME HIGH ROAD
MANDAVELI CHENNAI-28.
6 THE DISTRICT REGISTRAR
CHENGALPET
7 THE SUB REGISTRAR
THIRUPORUR
8 THE SUB INSPECTOR OF POLICE
DISTRICT CRIME BRANCH,
KANCHEEPURAM DISTRICT. .. Respondents in W.P.3103/14
Prayer in W.P.Nos.33692 & 33693 of 2013: Writ petitions filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari calling for the records relating to the orders dated 26.11.2013 in respect of Form 18 and Form 32 dated 12.02.2013 filed vide SRN:B6707176 and SRN:B67610279 respectively passed by the 2nd respondent herein and quash the same.
Prayer in W.P.No.3103 of 2014: Writ petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari calling for the records relating to the order dated 29.11.2013 in No.4435/A1/2013 passed by the District Registrar, Chengalpet and quash the same.
For Petitioner : Mr.P.H.Arvindh Pandian,
Senior Counsel for Mr.M.Deivanandam
For Respondents 1 & 2 : Mr.S.Haja Mohideen Gisthi
S.C.G.S.C
For Respondent 3 : Mr.Ashok Menon
For Respondents 4 to 8 : Mr.P.Sanjay Gandhi, AGP
- - - - -
C O M M O N O R D E R
The third respondent in the first three writ petitions, who is also the sixth respondent in the fourth writ petition, appears to have availed a loan in the name of a company and had offered a property at East Coast Road, Kovalam, measuring an extent of about 43622 sq.ft, together with superstructure measuring 16738 sq.ft. along with movable and immovable assets located in different properties as primary security. The loan had been availed by a company by name M/s.Mithas Labs Clinical Trial Research Foundations Pvt. Ltd., from a bank known as Federal Bank, Anna Salai Branch, Chennai.
2. It appears that the borrower could not repay the loan, forcing the bank to initiate proceedings under the SARFAESI Act.
3. Therefore to save the properties from being sold in auction, the contesting respondent entered into an agreement with the petitioners, by which, the petitioners agreed to pay to the bank a sum of Rs.4,65,00,000/-. Subsequently, when the amount was actually paid, the amount got increased to Rs.5,50,00,000/-.
4. After the redemption of the mortgage, the company appears to have filed certain Forms with the Registrar of Companies. After the Forms were filed, the contesting respondent appears to have made a complaint to the Registrar of Companies, claiming that his digital signature had been forged in three Forms viz., two Form 32 and one Form 18. On the basis of the complaint so lodged by the contesting respondent, The Registrar of Companies passed three orders all dated 26.11.2013, cancelling two Form 32 and one Form 18. Challenging these three orders, the petitioners have come up with the writ petitions in W.P.Nos.33692 to 33694 of 2013.
5. Subsequently, the District Registrar passed an order dated 29.11.2013, directing registration of a complaint in terms of Section 83 of the Registration Act, 1908, solely on the basis of the orders passed by the Registrar of Companies. Therefore, challenging the proceedings of the District Registrar, the petitioners have come up with the 4th writ petition in W.P.No.3103 of 2014.
6. I have heard Mr.P.H.Arvindh Pandian, learned senior counsel appearing for the petitioners in the first three writ petitions, Mr.M.Deivanandam, learned counsel appearing for the petitioners in the 4th writ petition, Mr.Haja Mohideen Gisthi, learned Senior Central Government Standing Counsel appearing for the Registrar of Companies and Mr.P.Sanjay Gandhi, learned Additional Government Pleader appearing for the State.
7. The fate of the 4th writ petition should automatically follow that of the first three writ petitions, in view of the fact that the order impugned therein passed by the District Registrar is only a sequel to the orders impugned in the first three writ petitions. A perusal of the order dated 29.11.2013, passed by the District Registrar, which is impugned in the 4th writ petition would show that the same was passed only on the basis of the letters of the Registrar of Companies dated 30.01.2013 and 17.10.2013. Hence, the result of the 4th writ petition would depend entirely upon the first three writ petitions. Therefore, I shall take up the challenge to the orders of the Registrar of Companies first.
8. It is seen from the three orders passed by the Registrar of Companies, thet, he had cancelled two Form 32 and one Form 18 by invoking Regulation 17 of the Companies Regulations, 1956. Admittedly, these Forms had been filed as e-Forms and they form part of the electronic records in the office of the Registrar of Companies.
9. Regulation 17 of the Companies Regulations, 1956 empowers the Registrar to examine every application or e-Form filed with or delivered to in the electronic form. But the proviso to the said Regulation makes it clear that e-Forms identified as informatory in nature and filed under Straight Through Process (STP) may be examined by the Registrar any time. Under Sub-Regulation (2) of Regulation 17, the Registrar is obliged to call for further information, if upon examining any such application or e-Form, he finds it necessary to call for such information. In other words, Sub-Regulation (2) of Regulation 17 contemplates a procedure to be followed. Sub-Regulation (3) of Regulation 17, obliges the Registrar to give an opportunity allowing thirty days time.
10. But a careful look at Regulation 17 would show that the scope of the enquiry to be conducted by the Registrar, is limited to any defect found in the Form. The question as to whether the digital signature is forged or not cannot be adjudicated upon by the Registrar of Companies as it is a matter to be adjudicated either by a Civil Court or a Criminal Court, as the question would involve a very complicated question of fact. Therefore, apart the very fact that the Registrar did not follow the procedure prescribed under Regulation 17, he has also ventured into the area which does not fall within his purview to adjudicate upon. Therefore, on that ground the writ petitions are liable to be allowed.
11. Accordingly, the first three writ petitions in W.P.Nos.33692 to 33694 of 2013 are allowed and the impugned orders are set aside. Consequently, the fourth writ petition in W.P.No.3103 of 2014 is also allowed. However, it is open to the contesting respondent to take recourse to the legal provisions for ventilating his grievances on the issue of genuineness of the digital signature. Consequently, the connected miscellaneous petitions are closed. No costs.
15.09.2014 Index : Yes / No kk NOTE : Issue order copy on or before 22.09.2014 V.RAMASUBRAMANIAN, J.
kk To
1. The Registrar of Companies, Tamil Nadu, Shastri Bhavan, Nungambakkam, Chennai.
2. The Assistant Registrar of Companies, Tamil Nadu, Shastri Bhavan, Nungambakkam, Chennai.
W.P.Nos.33692 to 33694 of 2013 and 3103 of 2014 and Connected Miscellaneous Petitions 15.09.2014