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"If There Is No Field In MCA Portal For Lawyers As Professionals To Register Companies/LLPS It Would Be Discriminatory": Delhi High Court

Srishti Ojha
9 Feb 2021 2:13 PM GMT
If There Is No Field In MCA Portal For Lawyers As Professionals  To Register Companies/LLPS It Would Be Discriminatory: Delhi High Court
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Delhi High Court has on Monday directed Central Government to file an affidavit in the plea filed challenging the non-providing of a field for Advocates to register companies and LLPs on behalf of their clients in the current Ministry of Corporate Affairs' portal. A single Bench of Justice Pratibha Singh observed that if its true that MCA's portal has no provision made...

Delhi High Court has on Monday directed Central Government to file an affidavit in the plea filed challenging the non-providing of a field for Advocates to register companies and LLPs on behalf of their clients in the current Ministry of Corporate Affairs' portal. 

A single Bench of Justice Pratibha Singh observed that if its true that MCA's portal has no provision made for Advocates who are members of Bar Councils and Bar Councils are not provided as an option in the list of Councils, it is discriminatory qua Advocates and needs to be rectified.

The Court has asked the appropriate authority to take a decision on the issue and then place it before the Court.

The Bench noted according to Section 7(1) (b) of the Companies Act, 2013, Advocates can file documents for incorporation of a Company, and this would be true even in the case of LLPs. Therefore, if the portal does not have a provision for Advocates, it needs to be rectified.

The Court directed the Standing Counsel Ajay Digpaul to take instructions on the matter and file an affidavit within two weeks and listed the matter for next hearing on March 23rd 2021.

The Court observed that the Petitioner has prayed that an amendment needs to be carried out in the MCA tool kit so as to permit Advocates who are enrolled with the Bar Council to register as professionals in the MCA portal. The petitioner is aggrieved by the fact that even after an amendment in the Companies Act permitting Advocates to file documents for incorporation of companies, they still cannot register themselves as a practicing professional as the amendment has not been implemented in the tool kit.

The present plea has been filed seeking directions to the government to include the name of Advocates as professionals at the MCA Portal in terms of registration and facilitation for advocates and the law firms as firms of professionals. It has challenged the manner of online application process at MCA portal for registration as a professional, uploading of DSC of advocates as professionals and the filing of documents related to incorporation of companies and LLPs in such a manner that an advocate are unable to perform their lawful duty as professionals.

According to the petitioner, in absence of a provision for advocate at MCA online portal, an advocate cannot register there as professional. However, according to the new Companies Act 2016 and the Limited Liability Partnership Act, 2008 an advocate is authorized to verify the incorporation documents of the company.

"Under the various provisions of companies Act, 2006 including the section 7 of the Act, an advocate isin the same class where a Chartered Accountant, Cost Accountant or the Company Secretary for the verification of documents, but the manner used at the MCA portal segregating an advocate from others for the purpose of verification of forms and violating the fundamental right guaranteed to an advocate under article 14 of Constitution of India." – the plea stated.

The petitioner has therefore alleged that the MCA portal has been depriving her and other advocates from exercising their valuable right to practice their profession guaranteed under Article 19(1)(g) of Constitution of India , and the Advocates Act, 1961, Companies Act, 2016 and Limited liability Partnership Act, 2008.

The plea has been filed by Advocate Khagesh B. Jha on behalf of the petitioner Shikha Sharma Bagga.

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