Legum and Law Awareness Society vs Union of India

The present writ petition under Article 226 of the Constitution of India has been filed praying for following reliefs:-

(i) Directing the respondent to include the Advocates/corporate advocates in the list of Practicing Professionals and enable them to issue various certificates integrated into various e-Forms, notified under the Companies Act, 1956 and the Limited Liability Partnership Act, 2008.

Or

(ii) Directing the Respondent to eliminate the obligatory certification of e-Forms notified under the Companies Act, 1956 and the Limited Liability Partnership Act, 2008 and convert them into their previous format i.e. physical format as above.

(iii) Directing the Respondent to amend various e-Forms notified under the Companies Act, 1956 and the Limited Liability Partnership Act, 2008.

And/Or

(iv) Pass any other order or orders as the Hon''ble court may deem fit and proper in the light of the abovementioned facts and circumstances.

Realising that no direction in nature of mandamus can be issued to the Legislature to legislate in the manner which has been suggested in the prayer clause, learned counsel for the petitioner has relied upon sections 33 and 459 of the Companies Act, which read as under:-

Registration of Memorandum and Articles.--(1) There shall be presented for registration, to the Registrar of the State in which the registered office of the company is stated by the memorandum to be situate-

(a) the memorandum of the company;

(b) its articles, if any; and

(c) the agreement, if any, which the company proposes to enter into with any individual for appointment as its managing or whole-time director or manager.

(2) A declaration by an advocate of the Supreme Court or of a High Court, an attorney or a pleader entitled to appear before a High Court, or a secretary, or a chartered accountant, in whole-time practice in India who is engaged in the formation of a company, or by a person named in the articles as a director, manager or secretary of the company, that all the requirements of this Act and the rules thereunder have been complied with in respect of registration and matters precedent and incidental thereto, shall be filed with the Registrar; and the Registrar may accept such a declaration as sufficient evidence of such compliance.

Explanation - For the purposes of this sub-section, "chartered accountant in whole-time practice in India" means a chartered accountant within the meaning of clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949), who is practising in India and who is not in full-time employment.

(3) If the Registrar is satisfied that all the requirements aforesaid have been complied with by the company and that it is authorised to be registered under this Act, he shall retain and register the memorandum, the articles, if any, and the agreement referred to in clause (c) of sub-section (1), if any.

Provision for legal assistance to liquidator.--The liquidator may, with the sanction of the Tribunal, appoint one or more chartered accountants or company secretaries or cost accountants or legal practitioners entitled to appear before the Tribunal u/s 10GD to assist him in the performance of his duties.

Reference is also made to section 11(1) of the Limited Liability Partnership Act, 2008 which reads as under:-

Section 11 Incorporation document.-(1) For a limited liability partnership to be incorporated,--

(a) two or more persons associated for carrying on a lawful business with a view to profit shall subscribe their names to an incorporation document;

(b) the incorporation document shall be filed in such manner and with such fees, as may be prescribed with the Registrar of the State in which the registered office of the limited liability partnership is to be situated; and

(c) there shall be filed along with the incorporation document, a statement in the prescribed form, made by either an advocate, or a Company Secretary or a Chartered Accountant or a Cost Accountant, who is engaged in the formation of the limited liability partnership and by any one who subscribed his name to the incorporation document, that all the requirements of this Act and the rules made thereunder have been complied with, in respect of incorporation and matters precedent and incidental thereto.

The respondent, in the counter affidavit, has clarified that full effect is being given to section 33 of the Companies Act and section 11 of the Limited Liability partnership Act. The said provisions are being fully complied with. What has been highlighted and pointed out is that as far as filing of Forms 18 and 32 under the Companies Act are concerned, these were never filed by Advocates. The said fact is not denied. With the introduction of e-filing, the said forms have to be now filed electronically. These forms required declaration and verification to be made in the prescribed format by the parties. There is similarly a provision for making declaration and verification in the prescribed format in respect of limited liability partnerships, which again are required to be filed electronically. In this regard, authentication or certification is required to be made by Company Secretaries, Chartered Accountants and Cost Accountants.

Keeping in view the explanation given by the respondent, we are not inclined to accept the prayer made by the petitioner. Accordingly, the writ petition is dismissed. No costs.