M/S Gopala Polyplast Ltd. & Ors vs Registrar Of Companies, Ahmedabad, ...

M/s. Gopala Polyplast Ltd. & Ors, Appellants

Vs.

Registrar of Companies, Ahemdabad, Gujarat Respondents

Present: For Appellants:- Ms.Tannya Baranwal, Advocate

For Respondents:- Shri Sanjib K Mohanty, Senior Panel Government Counsel along with Shri Vijay Khubchandanl, Registrar of Companies, Gujarat, Ahmedabad.

JUDGEMENT

The Appellant being not satisfied with the, compounding of fine has

challenged the order dated 30th September, 2016 passed by National Company

Low Tribunal, (hereinafter referred to as the "Tribunal), Ahznedabad Bench, in

TP No.154./621A/NCLT/A1-1M./20.16 (Now), CA' Nó90/621A/CLB/MB/2013

(Old).

2. The appellant •'contravened the provisions of Section 383-A of the

Companies Act 1956. On inspection of Books of Accounts and other records

the Ministry of Corporate Affairs, Govt. Of India vide letter dated 22nd

September, 2008 informed about the contravention The Company had not

appointed a full time Company Secretary since 2004 and only after receipt of notice from Govt of India a full time Company Secretary was appointed on

November, 2008•:

On 19 June, 2012, the Registrar of the Company, Gujarat issued a

notice as. to why legal action be taken against the appellants for violation of

Section 383-A(.IA). of the Companies Act, 1956 (for short 'Act, 19561.

On receipt . of such notice, the appellants moved before the company.

.Law Board ..(CLB.' for short) for mpoui ding of offence under section 621-A of

the Companies Act (now equivalent section 441 of the Companies Act, 2013)

The Registrars of the Companies forwarded a common report dated 28th

May, 2013 and informed that the Company, its. Managing Director and its Full

Time Director, committed violation of "Section 383A of the Act 1956 during

the period from 1st April, .2004 to 31st October, .2008 and the total days of

default during that period comes to 1674. days. The Registrars of the

Companies calculated the maximum fine payable under the provisions of the

Act, 1956 as Rs 500 x 3 applicants x 1674 days Rs 25,11,000/-

Since the. constitution of the Tribunal, the case was transferred from

CLB. The Tribunal having heard the parties rioted that the paid up Capital

Share Of the Company as on .3 Dt March, 2007 was 14.77 crores as per report

of Registrar of the Companies. . The report also suggested that no similar offence under section .83-A. were compounded duri±.g, the last three years.

The company is not a Vanishing Company.

The Tribunal also noted the grounds& pleas taken by appeilants:in non-

compliance of Section 383-A of the Act, 1956 was due to oversight and was

not wilful violation The appellant pleaded to take lenient view.

8. The Tribunal on hearing the parties compounded the offence on

payment of fine at: Rs.400/- per day for each applicant. Three defaulter

appellants have been directed to pay Rs.6,69,600./- each by way of Demand

Draft.

Learned Counsel appearing on behalf'of appellants submitted that for a

similar offence, the National Company Law Tribunal, Bangaluru Bench, in T.P.

No 273/16/62 1A/2016 compounded the offence on payment of fine o

Rs.5O/ per day for delay Of 1706 days in violation of Section 383A of Act;-

1956.

10. Learned Counsel appearing on behalf of the 1 Respondent submitted

that the Tribunal having noticed the relevant factors compounded the offence.

11. In T.P. .No.273/2O16.M/S.:IzrnO. Limited:&..0rs,, the Nátioñal Company

Law Tribunal,• Bangluni Bench, noticed that.the aithoIrièd:sharc .apit:• of the. company as per latest Audited Balance sheet, the nature of business of

the said Company and other factors while compounding the offence.

• in the said case, it was noticed that the accounts of the Company was

audited and earning per share were found vei.,• low which was Rs.0.22 per

share of face value of Rs 10/- each..Taking into consideration that fact that

the Company appointed a full time Company Secretary after delay, of 1706

days, the compounded offence on payment of fine at Rs 50/- per day

In the present case; the appellants, have pleaded that the violation. of

Section 383A of. 1956 was not wilful and was due to oversight. The Registrar

of the. Companies has reported, that no similar offence under section 383A of

the Act was compounded during last three years and the Company is not a

vanishing Company. However, it is not the case of the appellants that their

share value have gone down, as was noticed in M/s Izmo Limited that T.P.

No 273 of 2016 It was also no that the appellants were not in a position

to pay higher amount.

It is true that the. Tribunal is required. to notice different factors

grounds apart froii nature of offence, and order if any passed in similar case

for the same offence. The decisions of different Bench of the Tribunal should

be consistent in passing orders taking. into consideration the essential factors.

and the precedence if brought on..record of the Tribunal 15 Sub-section (1A) of Section 383-A of the Act 1956 stipulate that if a

Company fail to comply With the provisions of Sub-section (1), the Company

and every officer of the Company who is in default shall be punishable with

fine which may extend to five hundred rupees for every day during which the

default continues

16. In the present case, it is not the case of the appe1lnts that their share

value, has gone down and the con1p.y and other defaulters are not in a

position to pay higher amount However, it is accepted by the Registrar of the

Companies that the appellants have not violated section 383-A during

previous three years It is not disputed that there was oversight and the default

WAS not wilful It is also accepted by the respordent that the moment the

matter was brought, to the notice of appellants by the Ministry f Corporate

Affairs, Govt. of India, the Company appointed a whole time secretary I on 8t

,2008.

17; In the aforesaid background and to: beconsistent with. the earlier orders

passed by the then Company Law Board and in some other cases by the.

are of the view ,that for violation of section 383-A offence is

•cOmpOunded 'on payment of.RsdO0fr(one hiindred only) per 4aybr each appellants The amount payable by each of the appellants will be Rs 100/- x

•1.674 days RS.167 67,4O0/- .Total Rupee ty-seven thousand.

Four hundred onl,) is. Hence, each of the appellants. are directed .to pay Rs.1.,67,400f- (Rupees

One Lakh sixty-seven thousand Four hundred only) separately by way of

separate Demand Drafts in favour of PAQ, MCA, Munibai within three weeks

from the date of this order, and file original Dl) before the Registry of the

National Company Law Thbunal, Ahmedabad within 4 weeks The total

.axriourit thereby calculates at Rs. 1,67,400',/ 46.5,02,200/- (Rupees Five

lakhs two thousand two .hundredbnly)..

19 The order .dated. 30th September, 20.1.6... passed by the . Tribunal,

Ahmedabad Bench in T.P. No.154/621A/NCLT/AHM/2016 (New), CA

No 90/621A/CLB/MB/2013 (Old) stands modified to the extent of above The

appeal is disposed of with the aforesaid observation and direction However,

there shall be no order as to cost

20 Let a copy of the order be forwarded to each of the appellants and the

respondent, Registrar of Companies, Ahmedabad, (}uj rat for needful

Mr. Balvinder Singh) . . (Justice S.J.Mukhopádhaya Member (Technical) Chairperson

New Delhi 28th February .2017