Compliance way or Confine way! The Government made it clear. Directors who were on a long-term picnic after removal of names of their “shell companies” are now offered sleepless nights. I appreciate.
Ministry of Corporate Affairs issued two important lists in this regard –
- List Of Directors Associated With Struck Off Companies U/S 248
- List Of Disqualified Directors U/S 164 (2)(A)
This exercise currently seems work-in-progress from most jurisdiction, but it may complete soon. The available list issued by Registrar of Companies, Chennai reveals all details of companies and their directors. It is advisable for the general public, not to deals with companies named as the strike off.
Summary of Events
In April 2017, various Registrars of Companies issued public notices and available on the website of Ministry of Corporate Affairs also. That time this blog discussed powers of the Registrar of Companies in relation to suo – motu removal of the name of the company from its register. Thereafter, this blog discussed here, these show cause notices and possible action plans to save these companies from suo – motu removal of names if their directors or other stakeholders have interest.
Thereafter, Registrar of Companies started strike – off name of these companies from their registers. Prime Minister Narendra Modi made a big announcement of confirming such strike of names of about 2,09,032 companies.
Presently a notice placed on homepage of MCA website read as under –
Any person disqualified under section 164(2) of the Companies Act, 2013 [the Act] is advised not to act as a director during the period of the disqualification and not to file any document or application with MCA as the same shall be summarily rejected. However, this shall be without prejudice to the liability of the said person for the violation of section 164(2) read with section 167 of the Act including the action under section 448 r/w 447 of the wherever warranted.
A press release issued by Minister of Corporate Affairs place here on the website of Press Information Bureau has similar communication. This press release has two important points –
- Department of Financial Services (DoFS) issued instructions to all the Banks on 5th September 2017, the Directors (ex-) or their authorized signatories had been restricted from operating the Bank accounts of such companies and they cannot syphon off money from the accounts of these “struck off” companies.
- It has been decided that in case the Director or authorized signatory of any “struck off” company tries to unauthorized syphon-off money from its bank account, he/she may attract punishment of imprisonment of not less than six months extendable to 10 years. If it is found that the fraud involves public interest, the punishment shall not be less than 3 years (imprisonment) and fine may also be imposed which would be three times the amount involved.
It seems government may try to invoke Section 447 of the Companies Act, 2013 which deals with fraud under corporate law.
The name of these companies was removed under Section 248. According to Section 248 (1), Registrar may take action under this section where Registrar has reasonable cause to believe that—
(a) a company has failed to commence its business within one year of its incorporation; or
(c) a company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any application within such period for obtaining the status of a dormant company under section 455.
Though public notice issued earlier regarding such removal of names did not mention the reason of their belief under Section 248(1), different communications made by the government suggests that where companies fail to file their annual accounts for three or more financial years, registrars considered these companies under section 248.
According to Section 164(2), no person who is or has been a director of a company which—
(a) has not filed financial statements or annual returns for any continuous period of three financial years; or
(b) has failed to repay the deposits accepted by it or pay interest thereon or to redeem any debentures on the due date or pay interest due thereon or pay any dividend declared and such failure to pay or redeem continues for one year or more,
shall be eligible to be re-appointed as a director of that company or appointed in other company for a period of five years from the date on which the said company fails to do so.
Further, Section 167(1)(a) direct that the office of a director shall become vacant in case he incurs any of the disqualifications specified in section 164.
A harmonious and purposive reading of sections 164(2) (a more specific provision) and 167 (a general provision) suggest that vacation of office of such director shall not take place in companies under default under Section 164(2). This will to open a window of compliance for these companies.
Future Course of Action
The pertinent question, now, is about the future course of action from these directors and their companies.
It is suggested that their disqualification under Section 164(2) shall be for 5 years only. However, their silence may be harmful and be recorded in the files of Registrars of Companies (RoCs) and of Serious Fraud Investigation Office (SFIO). Further, many of these “strike – off” companies have bank balances, properties, loans, other liabilities, disputes among promoters and directors, and need restoration.
In genuine cases, Section 252 (appeal to the tribunal within three years) and sub – sections (6), (7) and (8) of Section 248 may help on the case to case basis. Further, according to the proviso to sub – rule (1) of rule 3 of the companies (Removal of names of companies from the Register of Companies Rules 2016, certain categories of companies shall not be removed from the register of companies. In these cases, it is advisable to approach National Company Law Tribunal having jurisdiction.
As most of the companies under “Strike – off” are selected for not – filing of financial statements or annual returns for any continuous period of three financial years, this default need to be made good.
When the name of the company has already strike – off, how such default may make good. According to Section 250, such companies cease to operate as a company and the Certificate of Incorporation issued to it shall be deemed to have been cancelled from such date except for the purpose of realizing the amount due to the company and for the payment or discharge of the liabilities or obligations of the company.
STRIKE OFF HAPPENS EVEN WHEN THE NON FILING IS FOR 2 YEARS. BUT AS PER 164, DISQUALIFICATION HAPPENS WHEN THE NON FILING IS FOR 3 YEARS. IT MAY BE POSSIBLE THAT DIRECTORS OF COMPANIES WHOSE NAMES HAVE BEEN STRUCK OFF NEED NOT NECESSARILY BE DISQUALIFIED, IF THE DEFAULT IS NOT FOR 3 YEARS OR MORE.
Is non-filing period and tenure of directorship has clear nexus? This aspect may need careful reading and court decisions.
We have definitely take Petition to NCLT for restoration and get the Company regularised.
Now here whether the Directors of that Company will also be free from the disqualification ?
On completion of all pending legal compliance, cause of disqualification and therefore disqualification shall cease.
Can filing of Form DIR-10 help the disqualified director?
This blog published a complete post on this today.
Pingback: Understanding Form DIR – 10 | AishMGhrana
I was just going through your above article and somewhere you have mentioned that the default u/s 164(2) need to be made good by filing pending annual returns / filing.
But it seems that since couple of days back, MCA has blocked the filing of forms with dsc of disqualified director, even for the filing of pending annual forms of that particular defaulting company in which the disqualified director is a director .
In this scenario, how government is expecting the Company and Director to Comply with law or make the default good?
Further, for appointment of New Director in place of defaulting director on account of vacation of office, Form DIR-12 is required to be filed with ROC. But, since the form DIR-12 for new Director is required to be filed with DSC of old (disqualified) Director, and since the filing of such form with DSC of Disqualified Director is presently blocked by MCA, then how the new Director/s will be appointed and how new director/s will make the default of pending annual filing good?
Can you please put your views on the above.
Can MCA block “defaulting director” from filing a form in “defaulting companies”?
Unfortunately, that’s the truth!!!
Since 13.09.2017, our over enthusiastic government and MCA, in crackdown on black money has blocked filing of ALL Forms of Defaulting Company with the DSC of Disqualified Directors. Additionally, MCA has also blocked the filing of forms of non-defaulting company, but having the DSC of disqualified Director.
In my view, ROC has the power only to Strike off the Company and neither MCA nor ROC has power u/s 164 to declare any director as Defaulting Director.
I do not know, under which provisions of the Companies Act 2013, MCA and ROC has got power to disqualify the Directors and also barred the filing of forms with DSC of defaulting Director.
No power required, in non -filing cases disqualification is there under 164(2). Putting it on public information is another matter.
Can we file dir-10 as per Rule 14(5) of Companies (Appointment and Qualification of Directors) Rules, 2014 for removal of disqualification ?
It will probably not work as simple as it seems.
I have one query that in some cases ROC has considered default of continuous period of 3 years even before commencement of Co. Act, 2013 and for period before enforcement of Sec. 164 (2). Whether we can challenge this by saying that Sec. 164 (2) should be applied for default of 3 years for financial years w.e.f. 01/04/14 i.e. 2014-15, 2015-16 and 2016-17 as it was correctly drafted in old Act, 1956 u/s 274 (1) (g). i.e. applicable for financial years w.e.f. 01/04/1999 for public companies.
Why not? It is up to court to accept or not.
But what about the Directors who are operating in other companies which is active and complying. The companies which was formed but could not do business and have no transaction for years are strike off. But the same Directors are running other successful legitimate companies but their DIN no. are locked, how can they operate.
If any one opens a company but fails to do business, is it a fault for which he is being punished.
The purpose of strike off and punishing the innocents, who are operating in other concern is sheer injustice and misfit with the mission and the purpose.
Govt must come up with helping hand for these msmes.
All directors whose companies failed to comply with law of land must be punished.
They are not at all innocent but educated and ignorance of law is no defense.
Any help for such directors will actually be fraud against law and nation. furthermore, such help will will abate others to do such non-compliance of law.
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Kindly mention procedures for appointment under sec 167 (3)
After Strike off how much time MCA takes to charge action on directors if strike off take place due to non filing of return for 3years. and also no business is carryon.
Is the director disqualified u/s 164(2)(a), cease to be a director in other active company? Please reply.
Once disqualified, they are not qualified to be director of any company.
Yess…His office will be vacant in other active companies……but he will continue to be director of defaulting company.
This is a view, I disagree.