TMI Blog2017 (8) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... re and not to repeat any violation of the provisions of the Companies Act or else serious view will be taken by the Tribunal. - CA NO. 01/621A/HDB/2016 - - - Dated:- 5-7-2017 - MR. RAJESWARA RAO VITTANALA AND MR. RAVIKUMAR DURAISAMY, JJ. For The Applicants : Ms. Varsha Banerjee, A.S. Prashanth and Amir Bavani JUDGMENT Per : Mr. RAVIKUMAR DURAISAMY, MEMBER (TECHNICAL) National Company law Tribunal, Hyderabad Bench vide Order dated 21.10.2016 dismissed the compounding application No. 1/621A/HDB/2016 filed by the Applicants in view of the facts that the reliefs as sought by the Applicants is premature and directed the Applicants to approach the Central Government for approval of the Related Party Transactions. Against the orders of this Tribunal, the Applicants have preferred an appeal to the Hon'ble National Company Law Appellate Tribunal (NCLAT). The Hon'ble Appellate Tribunal vide Order dated: 28.02.2017 directed this Tribunal to examine the case in terms of Section 621A of the Companaies Act, 1956. Accordingly, the Applicants submitted their written submissions dated 31.03.2017. 2. The brief facts of the case are as follows : (a) The Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide the instant Application in terms of Section 621A of the Companies Act, 1956. 4. That pursuant to the order dated 28.02.2017 passed by the Hon'ble Appellate Tribunal, the Applicants herein have filed the instant written submissions dated 31-3-2017 to seek due consideration of this Hon'ble Tribunal for compounding of the offence as allegedly committed by the Applicants in the instant case. TRANSACTION WITH M/S. FLYINGTON FREIGHTERS PVT. LTD. 5. That the Applicant Company during the period 16.10.2007 to 31.03.2011 carried out various transactions viz. services/payments from/to one M/s. Flyington Freighters Pvt. Ltd. Eventually, the Respondent vide its letter dated 17.05.2013 issued a Notice to the Applicant Company, thereby stating that the Applicant Company has transferred funds to FFPL towards maintenance charges of aircraft as well as on account of fund transfers totalling to ₹ 99,45,98,392.03/- during the period 16.10.2007 to 31.03.2011. 6. The Applicant Company vide its reply dated 04.06.2013, duly submitted that the transactions between the Applicant Company and FFPL does not fall under any categories as provided under Section 297 of the Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on date and there is no continuance of the alleged offence as on date. The entire amount being paid by the Applicant Company to M/s. Flyington Freighters Pvt. Ltd. has been duly received by the Applicant Company and thus the present case can be favourably considered for compounding in accordance with the provisions of the Companies Act, 1956. OFFENCE IS COMPOUNDABLE IN NATURE 12. The offence under Section 297 of the Act, alleged to have been committed by the Applicants herein are compoundable in nature. It may appropriately be said that the penalty for violation/default of the said Section is provided under Section 629A of the Act, which is reproduced herein below for ready reference of this Hon'ble Tribunal:- 629A. Penalty where no specific penalty is provided elsewhere in the Act. If a Company or any other person contravenes any provision of this Act for which no punishment is provided elsewhere in this Act or any condition, limitation or restriction subject to which any approval, sanction, consent, confirmation, recognition, direction or exemption in relation to any matter has been accorded, given or granted, the company and every officer of the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only U/s. 629A of the Companies Act, 1956. 19. Transfer Petition 188 Sub-Section 5: Any director or any other employee of a company, who had entered into or authorized the contract or arrangement in violation of the provisions of this section shall, - (i) In case of listed company, be punishable with imprisonment for a term which may extent to one year or with fine which shall not be less than twenty-five thousand rupees but which may be extended to five lakh rupees or with both; and (ii) In case of any other company, be punishable with fine which shall not be less than twenty-five thousand rupees but which may extend to five lakh rupees. 20. The above contention was not raised by the Applicants in the previous Company Application filed before the Hon'ble Company Law Board on 25.04.2016 21. Though the applicants claim that the offence was made good as they have received the entire amount of ₹ 99.45 crores from FFPL, however no interest was received by the applicant company towards the advance amount given to FFPL. The Applicant Company being a listed company is responsible to all its shareholders (approx. 37,900 shareholders as on 31-3-2011). However, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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