TMI Blog2021 (12) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... tion against the company has been initiated or is pending under the Act. We have already discussed above that the report of the RoC has stated that there are no complaints and there is no inspection/investigation pending. In the present case, the company has made an application suo motu and has stated that this or similar offences has not been compounded during the last three years - it is considered reasonable to compound the offence under Section 67(3) of the Companies Act, 1956 in the case of Capital Small Finance Bank Limited on payment of a compounding fee of ₹8,00,000/- - amount of the compounding fee be deposited with the Pay and Accounts Officer Ministry of Corporate Affairs, New Delhi within a period of one month from the date of receipt of certified copy of the order. Petition disposed off. - CP No.52/Chd/Pb/2021 - - - Dated:- 26-11-2021 - Hon ble Mr. Harnam Singh Thakur, Member (Judicial) And Hon ble Mr. Subrata Kumar Dash, Member (Technical) For the Petitioner Companies : Mr. Anand Chhibbar, Senior Advocate, Mr. Vaibhav Sahni, Advocate, Mr. Shikhar Sarin, Advocate JUDGEMENT The instant CP is filed by Capital Small Finance Bank Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. June 22, 2004 3,22,275 33 9. June 27, 2004 8,40,100 40 10. June 29, 2004 83,000 18 11. September 4, 2004 1,60,700 11 12. January 31, 2005 2,00,000 1 13. February 26, 2005 35,500 4 14. March 28, 2005 1,000 1 TOTAL 45,71,575 402 4. It is submitted that as per the principles laid down in Section 42 of Companies Act, 2013 read with Section 67(3) of the Companies Act, 1956, the above-said allotment was not made in compliance of the same and that the applicant company had erroneously, inadvertently and under bonafide mistake breached the threshol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed [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 company, may be deemed to have breached the threshold provided under Section 67(3) of Companies Act, 1956. 6. It is submitted that the Securities and Exchange Board of India (SEBI) has also issued a press release dated November 30th, 2015, along with a Circular dated December 31st, 2015 as amended by Circular dated May 03rd, 2016, which allowed that in respect of the cases involving the issuance of securities to more than 49 persons but up to 200 persons in a financial year, the companies may avoid penal action if they provide the investors with an option to surrender the securities and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377;5000 + ₹500 x 6364 days= ₹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 notice of the petition was directed to be issued to the Registrar of Companies, Chandigarh and Punjab. The report was submitted vide Diary No.00718/2 dated 13.10.2021. It was stated in the report that Section 67 of the Act do not provide any penalty for non-compliance. In the absence of a specific penalty, Section 629A of the Companies Act, 1956 is applicable. As per Section 629A of the Act, the maximum fine is ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in specifying the sum required 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 comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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