IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.6.2011 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.Nos.26997 of 2010 & 1065 & 1066 of 2011 & M.P.Nos.1 & 2 of 2010 & M.P.Nos.1 & 1 of 2011 1. Pentagon Trading Services Pvt. Ltd., Rep. by its Director, Mr.P. Ram Mohan No.2, Basement, Kalyan Atkinson Road, Vepery, Chennai-600 007. 2. Ram Mohan Padmanabhan Old No.19, (New No.16), Officer Colony, 5th Street, Alandur, Chennai-600 088. 3. Hariharan Rajaram, Plot No.26, Door No.9, Jai Bharathi nagar, Porur, Chennai-600 116 .. Petitioners in W.P.No.26997/2010 1. Analog Financial Services Pvt. Ltd., Rep. by its Director, 889, First Floor, No.16-A, Sastri Road, Thennur, Trichy-620 017 2. Mohan Ramadurai B-6, Sumanth Apartments, No.2, Beemanna Mudali Street, Alwarpet, Chennai-600 018 3. Dr.Ganesh Radhakrishnan Brindavan Apartments, No.436/1, Dr.Ramaswamy Salai, K.K.Nagar, https://hcservices.ecourts.gov.in/hcservices/ Chennai-600 078 .. Petitioners in W.P.No.1065/2011 1. Traid Trading Services Pvt. Ltd., Rep. by its Director, 2n F1, Kalyan, Atkinson Road, Vepery, Chennai – 600 007. 2. Kunjithapatham Vedarathinam E-2, Police Quartes, Radhakrishnan Salai, Mylapore, Chennai – 600 004 3. Ram Mohan Padmanabhan 19, Officer Colony, 5th Street, Alandur, Chennai-600 08. .. Petitioners in W.P.No.1066/2011 -vs- 1. The Union of India, Rep. by its Secretary to the Govt., Ministry of Corporate Affairs, 5th Floor, A Wing, Shastri Bhavan, Dr.R.P.Road, New Delhi. 2. The Regional Director, Ministry of Company Affairs, Southern Region, Shastri Bhavan, No.26, Haddows Road, Chennai-600 006. 3. The Registrar of Companies, Southern Region, Shastri Bhavan, No.26. Haddows Road, Chennai-600 006. .. Respondents in all Writ Petitions PRAYER : Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of Mandamus, directing the respondents herein to issue an immunity certificate to the petitioners in connection with the application dated 22.10.2010 (W.P.Nos.26997 of 2010 and W.P.No.1065 of 2011) and 28.10.2010 (W.P.No.1066 of 2011) in accordance with the provisions of the Company Law Settlement Scheme, 2010. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.Prakash Goklaney For Respondents : Mr.S.Sampath, CGSC for R1 in W.P.No.26997 of 2010 and Mr.P.Ganesan, CGC for R1 in W.P.Nos.1065 & 1066 of 2011 O R D E R The petitioners in these three writ petitions are all doing financial or trading services. They have asked for a direction to the respondents to issue an immunity certificate to the petitioners in connection with their applications dated 22.10.2010 in accordance with the provisions of the Company Law Settlement Scheme, 2010. 2. When the first writ petition, viz., W.P.No.26997 of 2010, came up on 29.11.2010, learned Standing counsel for the respondents was directed to be issued with notice. Pending the notice, on 09.12.2010, this Court granted interim stay of all the proceedings in E.O.C.C.Nos.8 and 9 of 2010 against the first and second petitioners and E.O.C.C.Nos.97 and 98 of 2010 against the third petitioner herein, both on the file of the Additional Chief Metropolitan Magistrate (E.O.I), Egmore, Chennai. 3. When the second and third writ petitions came up on 21.1.2011, they were admitted and pending the writ petitions, an interim stay was granted for 8 weeks. On notice from this court, separate counter affidavits, each dated 28.2.2011 were filed along with the additional counter affidavits, dated 28.3.2011 by the third respondent on behalf of respondents 1 and 2 also. 4. Admittedly, in all these cases, the petitioners have been issued with summons in various criminal cases filed by the Deputy Registrar of Companies, Tamil Nadu under Section 159 read with Section 162 of the Companies Act, 1956. If the petitioners have any lawful defence, it is for them to put their defence before the Criminal Court concerned and they cannot rush to this Court by claiming immunity under the Company Law Settlement Scheme and thus get over the criminal trial. 5. The stand taken by the petitioners is that they being a trading/ financial company incorporated under the Companies Act, they have been regularly filing annual returns complying with the statutory requirements. During the year 2008-2009, due to operational difficulties, they could not file returns in Form 20B, 23AC and 23ACA pursuant to Sections 159 and 220 of the Companies Act within the time https://hcservices.ecourts.gov.in/hcservices/ stipulated under the statute. But the returns were filed belatedly, i.e. on 11.3.2010 with requisite late fee. However, the third respondent has launched the prosecution. In respect of the first writ petition as against the third petitioner, the case was further split up because he was not found in the country. 6. It is submitted by the petitioners that the Ministry of Corporate Affairs, in exercise of powers under Section 611(2) and 633B(b) of the Companies Act, introduced a scheme, viz., the Company Law Settlement Scheme, 2010 granting immunity against prosecution for non-filing of returns under the provisions set out therein. The said scheme came into force on 30.5.2010 and remained in force upto 31.8.2010. The scheme provides that the defaulting company shall pay statutory filing fees as prescribed under the Companies Act and Rules made thereunder along with an additional fee of 25% of the actual additional fee standardized under sub-section 2 of Section 611 of the Companies Act, payable on the date of filing of each belated document. Further, if the defaulting company has filed any appeal against any notice issued or complaint filed before the competent court for violation of the provisions under the Act, in respect of which, an application is made under the scheme, the applicant shall before filing an application for issue of immunity certificate, withdraw the appeal and furnish the proof of such withdrawal along with the application. The Scheme further provides that the application seeking for immunity in respect of belated documents filed under the scheme may be made electronically in the form annexed after closure of the scheme and after the documents are taken on file or on record or approved by the Registrar of Companies, but not after the expiry of six months from the date of closure of the Scheme and no fee shall be payable on that form. 7. According to the petitioners, after the scheme came into force, an application was made in the required form along with all the necessary papers. But no orders were passed by the respondents and, therefore, it was contended that since the respondents have not granted immunity certificate, the learned Magistrate has proceeded with the prosecution. It was also claimed that a direction should be given to the respondents to grant the immunity certificate. 8. In the counter affidavit filed by the respondents, it was stated that the petitioners filed an application along with all the necessary papers admitting that the returns were filed belatedly and therefore, the returns which were filed earlier may be taken into account for the grant of immunity under the scheme. Their request was rejected by the respondents as the returns were filed by the petitioners before coming into force of the scheme. https://hcservices.ecourts.gov.in/hcservices/ 9. In the General Circular No.1/2010 of the Company Law Settlement Scheme, 2010 chalked out by the Ministry of Corporate Affairs, Government of India, New Delhi, it is stated in paragraph 3 (i) that the scheme shall come into force on 30th May 2010 and shall remain in force till 31.8.2010. The petitioners wanted to take advantage of the scheme and have not filed the returns within the time for the year 2008-2009, which were filed belatedly on 05.12.2009 i.e. long after the scheme was closed. Therefore, normal prosecution was launched. The petitioners are not entitled for the immunity under the scheme as they had never availed the scheme in question. The scheme was made only for those companies, which have filed the returns within the period and cannot be extended to others who have committed default. Further, in the additional counter affidavit, in paragraph 5, it was averred as follows: "5. As the Petitioners Company has not filed Returns during the Scheme period, the question of considering the application for grant of immunity does not arise. If the request of the Petitioners company who have filed their returns much before the scheme period, is entertained, it will open flood gates and it will pave way for similarly placed companies to follow the suit to claim immunity and interalia it would defeat the object of the scheme." 10. The stand taken by the respondents merit acceptance. The petitioners have come to this Court only to avoid the prosecution. In an immunity scheme, the petitioners will have to comply with the scheme strictly, as it is an amnesty scheme, over which, the Court has no power. The petitioners have not availed the scheme as per the Circular issued by the department. Therefore, they cannot seek the help of this Court to get over either the scheme or the prosecution launched due to their failure to submit the proper returns. 11. In view of the above, this Court is not inclined to entertain the writ petitions. Hence the writ petitions are dismissed. Consequently, the connected miscellaneous petitions are also dismissed. However, there will be no order as to costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar js https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to the Govt., Ministry of Corporate Affairs, 5th Floor, A Wing, Shastri Bhavan, Dr.R.P.Road, New Delhi. 2. The Regional Director, Ministry of Company Affairs, Southern Region, Shastri Bhavan, No.26, Haddows Road, Chennai-600 006. 3. The Registrar of Companies, Southern Region, Shastri Bhavan, No.26. Haddows Road, Chennai-600 006. 3 cc to Mr.Prakash Gokleney , Advocate, Sr.No.32150, 32151, 32152. W.P.Nos.26997 of 2010, 1065 and 1066 of 2011 sk(co) pmk.15.6.2011 https://hcservices.ecourts.gov.in/hcservices/