9911796707
TMI Blog2021 (12) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... is stated that the present authorised share capital of the applicant company is Rs.50,00,00,000/- (Rupees Fifty Crore) of Rs.10/- each. The present issued, subscribed and paid-up share capital of the applicant company is Rs.33,92,71,020/- (Rupees Thirty Three Crore Ninety Two Lakh Seventy One Thousand and Twenty Only) divided into 3,39,27,102 equity shares of Rs.10/- each. 3. It is also stated that the applicant company, which is a domestic concern, had undertaken 14 allotments of 47,71,575 equity shares of Rs.10/- each at the price of Rs.13/- equity share to employees, directors and existing shareholders and Rs.15/- per equity share to the other allottees, aggregate to 402 allottees during the Financial Year 2004-05. Those allotments were made to the persons who were friends, relatives and associates of the promoters. Copy of detailed table evincing the 2004-2005 allotment is reproduced below:- S. No. Date of Board Meeting No. of Equity Shares Allotted No. of Allottees 1. May 1, 2004 2,13,100 45 2. May 7, 2004 1,90,000 46 3. May 18, 2004 2,98,900 49 4. May 25, 2004 1,64,900 47 5. May 29, 2004 1,64,400 43 6. June 2, 2004 1,27,200 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany' s articles prohibiting invitations to the public to subscribe for shares or debentures shall not be taken as prohibiting the making to members or debenture holders of an invitation." The provisions of Section 42 of the Companies Act, 2013 states that: "42. (1) A company may, subject to the provisions of this section, make a private placement of securities. (2) A private placement shall be made only to a select group of persons who have been identified by the Board (herein referred to as "identified persons"), whose number shall not exceed fifty or such higher number as may be prescribed [excluding the qualified institutional buyers and employees of the company being offered securities under a scheme of employees stock option in terms of provisions of clause (b) of sub-section (1) of section 62], in a financial year subject to such conditions as may be prescribed." 5. It is further submitted that while the allotments individually did not breach any provisions of the Companies Act, 1956 as it was applicable then, the applicant company, on the advice of the legal consultants now understands that if taken in aggregate over the financial year 2004-2005, the applicant co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied shareholders. Copy of sample invitation along with proof of dispatch to the aforesaid shareholders is attached as Annexure P-11 of the petition. 8. The applicant company has also filed a compliance affidavit vide Diary No.00718/3 dated 27.10.2021 wherein the computation of maximum fine that can be levied is given as under:- S. No. Fine Maximum Fine (29.05.2004 to 31.10.2021 = 6364 days) 1. Rs.500/- plus Rs.500/- for each day of default Rs.5000 + Rs.500 x 6364 days= Rs.31,87,000/- 9. It is submitted that the offence relating to default under Section 67(3) of Companies Act, 1956 is the first offence and that the applicants have not previously filed any application, writ petition, suit or initiated any other legal proceeding with regard to the subject matter of the present application before any court of law or other authorities or any other Bench of the NCLT and that no such application, writ petition, suit or any other legal proceeding is pending before any of them. 10. It is prayed that the offence under Section 67(3) of Companies Act, 1956 be compounded and a lenient view is taken, and reasonable compounding fee is levied. 11. Vide order dated 25.10.2021, the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to be paid or credited for the compounding of an offence under this subsection, the sum, if any, paid by way of additional fee under subsection (2) of section 403 shall be taken into account: Provided also that any offence covered under this sub-section by any company or its officer shall not be compounded if the investigation against such company has been initiated or is pending under this Act. (2) Nothing in sub-section (1) shall apply to an offence committed by a company or its officer within a period of three years from the date on which a similar offence committed by it or him was compounded under this section. Explanation.-For the purposes of this section,- (a) any second or subsequent offence committed after the expiry of a period of three years from the date on which the offence was previously compounded, shall be deemed to be a first offence; (b) "Regional Director" means a person appointed by the Central Government as a Regional Director for the purposes of this Act." 15. As per the provisions of Section 441(1) of the Act, compounding can be made of any offence punishable under the Act (whether committed by a company or any officer thereof) not being an of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
