Attorneys at Law Since 1964

Issue 27 – Insights 5

Issue 27 – Insights 5

Insights – What the (S)Hell?

Section 164(2) (a) of the Companies Act, 2013 – Dissected

  1. Section 164(2) (a) of the Companies Act, 2013 like its predecessor section 274(1)(g) of the Companies Act, 1956 expressly provides for disqualification of directors for not filing annual returns for 3 continuous financial years. However, the fundamental difference between the two sections – while the old Act (1956) exempted private companies from such disqualification, the new Act (2013) has made this applicable to all companies (including private companies).
  2. Also section 164(2) sub section (a) specifically attracts disqualification to directors for default in company compliance such as failure to file the return or repay interest or principle amount on debentures or deposits. This seems to be the legal aspect of applying section 164 (2) (a) to disqualify directors.

Section 164 (2) (a) expressly disqualifies directors both past and present of a company that has defaulted in filing annual returns for any continuous three financial years.

(Mis) interpretation of the Section?!

A legislation is to be applied prospectively and not retrospectively. The Companies Act, 2013 came into effect on 1st April, 2014. Section 164(2) (a) also came into effect on and from that date. From that stand point, section 164 (2) (a) has to be applied prospectively. This means that disqualification of directors should be attracted for failure to file annual returns for FY 2014-15, 2015-16 & 2016-17. However, several ROCs have disqualified directors for failure to file annual returns for FY 2013-14, 2014-15 & 2015-16. This means that the law has been applied retrospectively.
Some lawyers have represented such directors in Courts praying for stay of such disqualification on directors because the law must be applied prospectively only.

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