IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 WP(C).No. 25534 of 2011(N) -------------------------- PETITIONER(S): --------------- CONCERT SECURITIES LIMITED, G-28, PANAMPILLY NAGAR, COCHIN-36 (CIN-U 67120 KL 1995 PLC 008542), REPRESENTED BY ITS MANAGING DIRECTOR, MATHEW ANTHAPER. BY ADV. SRI.M.R.RAJESH SRI.K.M.ALEXANDER RESPONDENT(S): --------------- 1. THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVT.MINISTRY OF CORPORATE AFFAIRS, GOVT OF INDIA, 5TH FLOOR, A-WING, SHASTRI BHAVAN, DR.R.P.ROAD, NEW DELHI. 2. THE REGISTRAR OF COMPANIES (KERALA), 1ST FLOOR, COMPANY LAW BHAVAN, BMC ROAD, THRIKKAKARA, COCHIN-27. SRI.P.PARAMESWARAN NAIR,ASG THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).25534/11 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1: A TRUE COPY OF THE MEETING OF THE BOARD OF DIRECTORS OF THE PETITIONER COMPANY, HELD ON 1-9-2011. EXHIBIT P2: A TRUE COPY OF THE GENERAL CIRCULAR NO.2/2010 DATED 26-5-2010 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P3: A TRUE COPY OF THE ACKNOWLEDGEMENT NO.SRN-A92319607 ISSUED BY THE MINISTRY OF CORPORATE AFFAIRS DATED 25-8-2010 ISSUED TO THE CHARTERED ACCOUNTANTS OF THE PETITIONER ALONG WITH THE APPLICATION IN FORM EES 2010. EXHIBIT P4: A TRUE COPY OF THE E-MAIL DATED 19-10-2010 RECEIVED BY THE PETITIONER'S CHARTED ACCOUNTANT AND FORWARDED TO MANAGING DIRECTOR OF THE PETITIONER. EXHIBIT P5: A TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER DATED 1-11- 2010. EXHIBIT P6: A TRUE COPY OF THE ORDER DATED 22-6-2011 IN CRMA 5944/2010 IN UN- NUMBERED CRLP./2010 PASSED BY THIS HONOURABLE COURT. EXHIBIT P7: A TRUE COPY OF THE COMMUNICATION NO.EES-2010&2011/5054/2011 DATED 11/4/2011. EXHIBIT P8: A TRUE COPY OF THE FORM 67 SUBMITTED PURSUANT TO EXT.P7 BY THE PETITIONER. EXHIBIT P9: A TRUE COPY OF THE ORDER VIDE COMMUNICATION NO.EES- 2010&2011/7540/2011 DATED 2-6-2011. (True copy) P.A. To Judge ANTONY DOMINIC, J ....................................................... W.P.(C).25534/2011 .............................................. Dated this the 27th day of October, 2011 JUDGMENT Petitioner is a Company incorporated under the provisions of the Companies Act. The writ petition has been filed seeking to quash Ext.P9 by which an application made by the Company for the benefit of Ext.P2 Scheme, has been rejected. 2. Briefly stated facts are that the Government of India issued Ext.P2 General Circular introducing Early Exit Scheme, 2010, enabling the Companies to get their names struck off from the Register of Companies. Caluse 4(e) of Ext.P2 Scheme provides that the Scheme is not applicable to Companies against which prosecution if any, is pending in Court. Claiming the benefit of Ext.P2, petitioner submitted Ext.P3 application. Subsequently, by Ext.P4, clarification was sought from the petitioner regarding the pendency of criminal cases and in reply, petitioner submitted Ext.P5. They were again issued Ext.P7 informing that if the defects are not cured before 30.4.2011, Ext.P2 application will be rejected. In compliance with Ext.P7, petitioner submitted Ext.P8 Form 67, with the particulars of certain criminal cases and stating W.P.(C).25534/11 2 that all those cases were acquitted and that no appeals have been filed by the Department of Company Affairs. This information was found to be incorrect and therefore, Ext.P9 order was issued, rejecting the petitioner's application. It is in these circumstances the writ petition has been filed, seeking the benefit of Ext.P2. 3. The respondents have filed a counter affidavit justifying Ext.P9. 4. As already seen, clause 4(e) of Ext.P2 makes it clear that Companies which are facing prosecution are ineligible for the benefit of Ext.P2. In paragraph 6 of the counter affidavit, it is stated thus:- “On verification of records of this office made by this respondent in the light of Ext.P3 application it was revealed that during the year 2002 an inspection under section 209A of the Companies Act was carried out by the Assistant Director (Inspection), attached to D/o the Regional Director (Southern Region), Ministry of Corporate Affairs Chennai and in pursuance of which this office had launched 6 prosecution cases against the petitioner company and its directors. All the above cases h ave been disposed of by the trial W.P.(C).25534/11 3 court. However against the order of acquittal in 2 prosecutions, this respondent had filed appeals before this Honourable Court and were found to be pending.” 5. Obviously from the above, it is clear that 2 criminal cases are still pending against the petitioner. If that be so, in view of clause 4(e) of Ext.P2, the Scheme does not apply to the Company like the petitioner. Therefore, Ext.P9 cannot said to be faulty. 6. Be that as it may, in paragraph 11 of the counter affidavit, the respondents have stated that a new Scheme has been introduced, by name “Fast Track Exit Mode”. The averments in paragraph 11 of the counter affidavit, reads thus:- “Though the EES 2010 was launched for a limited period, a permanent facility namely “Fast Track Exit Mode” (FTE) has been launched by Ministry of Corporate Affairs with effect from 3.7.2011 for giving an opportunity to defunct companies to strike off their name. As such it is submitted that petitioners can file application under the new scheme with sufficient proof regarding disposal of criminal Appeal 1859/06 along with necessary requirement as stipulated in the FTE mode. This respondent has no objection in considering such an application if filed fresh under Fast Track Exit Mode.” W.P.(C).25534/11 4 7. In the light of the above averments, it is clarified that dismissal of the writ petition will not stand in the way of the petitioner applying for the benefit of the above new Scheme. The writ petition is dismissed with liberty to make a fresh application as above. ANTONY DOMINIC, Judge mrcs