SOURAJIT GHOSH Vs. UNION OF INDIA

JUDGEMENT

(1.) The writ petition is directed against a communication received from the State Bank of India to the Directors of M/s. S and H Manufacturing and Trading Private Limited dated 15 February, 2020 in which the newly appointed Director Mrs. Medhawi Verma wife of Mr. Sourajit Ghosh of the said company was not allowed to operate the bank account since she was declared disqualified along with other Directors, namely, Mr. Sourajit Ghosh and Mrs. Sila Singh Ghosh due to non-filing of audited financials of the company with the Register of Companies.

(2.) The learned counsel appearing on behalf of the petitioner submits that under Section 164(2) of the Companies Act (hereinafter referred to as the said Act), the said person may not be eligible for reappointment as a director of that company or appointed in other company for a period of 5 years from the date on which the said company fails to do so. But, under Section 167 of the said Act, the said director continues to remain as director of the companies which have not defaulted in filing the financial statements. In this regard, the learned counsel has relied upon a decision of the Division Bench of this Court in Arun Seth v. Union of India Ors. (MAT 1874 of 2017) dated 15 November, 2017 in which on an interpretation of Section 167(1)(a) read with Section 164(2)(a) of the said Act, it was held that disqualification under Section 164(2) of the said Act would not prevent the petitioner to continue to act as director of other companies which are not in default. The view expressed by the Division Bench was prima facie and issue not conclusively decided.

(3.) It is significant to mention here that the Hon'ble Division Bench at the relevant time was considering Section 167(1)(a) of the said Act which did not have a proviso that was added to it by an amendment on 7 May, 2018. Now, Section 167(1)(a) of the said Act reads as follows:-