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Showing contexts for: present perfect continuous in Bhagavan Das Dhananjaya Das vs Union Of India on 3 August, 2018Matching Fragments
14. Under this background, the learned Additional Solicitor General submitted that the disqualification for appointment of directors contemplated under Section 164(2)(a) is necessarily to be read along with Section 167. A conjoined reading of both sections, the post of director shall become vacant in case he incurs any of the disqualification defined under Section 164. Therefore, if a director of a company has not filed the financial statement or annual return for a continuous period of three financial years, he/she shall not be eligible to be reappointed as director of a company, as a result, the office of directorship shall become vacant, because of incurring the disqualification under Section 164. Now by virtue of the operation of law, all the writ petitioners suffered disqualification by virtue of Section 164(2)(a) read with Section 167(1)(a). Hence, Section 164(2)(a) of the Companies Act, 2013 alone cannot be read in isolation. Mr.G.Rajagopalan further submitted that the petitioners have not approached this Court with clean hands and it is the duty of the directors to make statutory compliance within the time prescribed under the law. Since the petitioners have failed in their statutory duties for not filing the annual returns for a continuous period of three financial years, the striking off the names of the companies and the consequential effect of disqualification of their directorship in the same company or in any other company cannot be found fault with. Taking support from the judgment of the Calcutta High Court in Nabendu Dutta v. Arindam Mukherjee, (2004) 55 SCL 146 (Cal.), it has been submitted that the Calcutta High Court has held that on the date of commencement of the amending Act, if any person has been a director in a defaulting company, he shall also be debarred to be appointed as director of any company for a period of five years. Therefore, when Section 164(2)(a) have two limbs, the words no person who is or has been director of a company which are used in the present continous and present perfect continuous form, respectively and the words has not filed financial statements or annual returns for any continuous period of three years which are used in present perfect tense, meaning thereby that in case any company has defaulted in filing its financial statement or annual return for a continuous period of three years, then no person who is occupying the position of director shall be eligible for reappointment as director of that company and he shall be debarred to be appointed as director in any company for a period of five years. In the light of the above, actions have been taken by the answering respondent only in identification of the disqualified directors and in accordance with the operation of law as envisaged under Section 164(2)(a) read with Section 167(1)(a). Therefore, this Court does not have any jurisdiction to undo the disqualification which had occurred on account of operation of law. Referring to paragraph-15 of the counter affidavit, the learned Additional Solicitor General submitted that on verification of the statutory returns for the financial years 2013-14, 2014-15 and 2015-16, it was found that the defaulting companies in which the petitioners are directors, failed to file the statutory returns for the financial years 2013-14, 2014-15, 2015-16, hence, they would stand disqualified due to the operation of law under Section 164(2)(a) of the Companies Act, 2013.