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In Re : Teamasia Semiconductors (India) Limited and Others

2016 (10) TMI 436 - NCLT, HYDERABAD

Compounding of offence - delay in appointing a Woman Director - Company Law Board/NCLT jurisdiction and power to compound offences - Held that:- The Tribunal can exercise its jurisdiction under Section 621A of Companies Act, 1956 or its corresponding Section 441 of Companies Act, 2013. Though the applicant has filed the Application under Section 621A of the Companies Act, 1956, later he has mentioned Section 441 of the Companies Act, 2013 in their Affidavit dated 16th August, 2016. Hence, we are .....

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lied only on 26.09.2015 to the show cause issued to them by RoC vide Ref No. RAP&TG/TBR/009561/2015/SCN/l 054, dated 10.08.2015. The Company has requested the RoC to exonerate them as the financial position of Company was not in good state. - The Applicants have filed this application for compounding of offence in question after initiating prosecution. - We are satisfied with the reasons furnished by applicants for 14 (fourteen) months delay in complying with the provision of Companies A .....

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the Registrar of Companies is directed to bring about the compounding of offence to the notice of the Learned Special Judge for Economic offences-cum-VIII AMSJ Court, Hyderabad for passing appropriate orders. - C.A.NO. 12/621A/HDB/2016 - Dated:- 29-8-2016 - Mr. RAJESWARA RAO VITTANALA AND Mr. RAVIKUMAR DURAISAMY, JJ. For The Applicant : Shri Y. Suryanarayana ORDER (As per Rajeswara Rao Vittanala, Member (J)) The application was initially filed before Company Law Board, Chennai Bench, Chennai. Si .....

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under Section 149 of Companies Act, 2013 by imposing minimum consolidated composition fee and further direct the Registrar of Companies (RoC), Telangana and Andhra Pradesh to withdraw the complaint from Hon'ble Court of Special Judge for Economic offences-cum-VIII, AMSJ Court, Nampally, Hyderabad and to relieve the applicants of all legal consequences. It is to be noted that the provisions of Section 621A of the Companies Act, 1956 is analogous to Section 441 of the Companies Act, 2013, whi .....

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gistered office situated at 205, Moghal Emami Mansion, Chintal Basti Road, Khairatbad, Hyderabad, Telangana - 500004 and is presently engaged in the business of trading, buying, selling, importing and exporting all manner of electrical, electronic and telecommunication goods, components, devices, etc. b. A show-cause notice was issued to the company and its directors by the RoC, Hyderabad vide Ref No. RPA & TG/TBR/027883/2015/SCN/1175, dated 19.08.2015, under Section 149 of the Companies Act .....

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have a Board of Directors consisting of individuals as directors and shall have-(a) a minimum number of three directors in the case of a public company, two directors in the case of a private company, and one director in the case of a One Person Company; and (b) a maximum of fifteen directors: Provided that a company may appoint more than fifteen directors after passing a special resolution. Provided further that such class or classes of companies as may be prescribed, shall have at least one w .....

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n (1) of section 149 shall comply with such provisions within a period of six months from the date of its incorporation. c. The Applicant Company submitted a reply dated 26.09.2015 to the show cause notice issued by RoC by stating that the Company has not carried out any commercial operations from the year 2000 and the Company's entire share capital is fully eroded due to past losses. The Company is also proposing to go for winding up as there is no hope of commencing any commercial activiti .....

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foresaid case was held on 07.04.2016 for examination under Section 251 of Criminal Code Procedure and the matter is posted for trial on 25.04.2016 e. It is further submitted that the Company has appointed a woman director namely Ms. Keerthi Chetan Desai holding DIN: 07455741, at the Board meeting held on 01.03.2016, in accordance with the provisions of the Companies Act, 2013 and filed form DIR-12 with the Registrar of Companies, on 02.03.2016. However such appointment ought to have been made on .....

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e is no hope of commencing any commercial activities by the Company. 4. We have heard Shri Y. Suryanarayana, learned Counsel for Applicants and also perused the report of Registrar of Companies, Hyderabad vide proceeding No. ROCH/Legal/Sec 149/621A/TSIL/STACK/2016 and also the connected case record. 5. The Registrar of Companies, while reiterating the contentions made in the application has stated that on 25.04.2016 the Company and its three Directors Mr. Kurupath Madhavan Nayar, Mr. Vaidyanatha .....

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nies Act, 2013 which specifies that if a Company contravenes any of the provisions of this chapter and for which no specific punishment is provided therein, the company and every officer of the company who is in default shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees 6. In the light of the above facts of the case, the issue to be decided in the present case is whether the NCLT is having power to allow the applicants to com .....

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h compounding is done that the matter can be brought before the Learned Addl. Chief Metropolitan Magistrate, IIIrd Court, Esplanade, Mumbai to accord permission to compound the offences, which are punishable with fine or imprisonment or both. Accordingly, the case for compounding was considered on merits and then permitted the compounding of offences, subject to terms and conditions mentioned therein by the Learned Bench. 8. We have further noticed that the above decision was differed by Learned .....

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that the court could not issue any direction to any of the parties to compound the offence. 9. The Learned Member of Company Law Board, by observing that there are two conflicting decisions rendered by the CLB benches on question of obtaining permission i.e., whether it is prior to or after compounding application, was of the opinion that the above question should be considered and decided by a larger Bench to be constituted by the Chairman of the Company Law Board. 10. Accordingly, a larger Ben .....

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fences other than those which are punishable with imprisonment only or with imprisonment and also fine, can be compounded by the Company Law Board without any reference to sub- section (7), even in cases where the prosecution is pending in a criminal court. 11. We have also come across another decision on the issue rendered by the Hon'ble High Court of Delhi in V.L.S Finance Ltd Vs. Union of India (UoI) and others (2003 VIII AD Delhi 166, 2005, 123 Compnay Cases 433 Delhi, (2003)DLT 159) dea .....

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nts of the parties in order to arrive at a just and proper decision in the matter." It is further held therein that the Company Law Board can compound the offence of the nature prescribed under sub-section (1) either before the institution of the criminal proceeding or even after institution of criminal proceeding and the said power is not subjected to the provision of sub- section (7). Both are parallel powers to be exercised by the present authorities who have been empowered under the sta .....

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ard/NCLT having jurisdiction and power to compound offences, where no fine or imprisonment or both is prescribed under the Act, is no longer res integra. The Tribunal can exercise its jurisdiction under Section 621A of Companies Act, 1956 or its corresponding Section 441 of Companies Act, 2013. Though the applicant has filed the Application under Section 621A of the Companies Act, 1956, later he has mentioned Section 441 of the Companies Act, 2013 in their Affidavit dated 16th August, 2016. Henc .....

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