2021 (12) TMI 386 - Tri - Companies Law

Compounding of offences and payment of compounding fee - issuance of securities beyond thresold limit - Section 441 of the Companies Act, 2013 read with Section 67(3) of the Companies Act, 1956 - HELD THAT - 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 offence punishable with imprisonment only, or punishable with imprisonment and also with fine. Section 441(6) also reiterates that any offence which is punishable under the Act with imprisonment only or with imprisonment and also with a fine shall not be compounded. In the present case, the default is for non-compliance of Section 67(3) of the Companies Act, 1956 and the penalty for the default in noncomplying with Section 67(3) is provided for in Section 629A of Companies Act, 1956 - the third proviso to Section 441(1) of the Act provides for non-compounding of offence if the investigation 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.

Issues Involved:

1. Compounding of offences under Section 441 of the Companies Act, 2013.
2. Non-compliance with Section 67(3) of the Companies Act, 1956.
3. Calculation and payment of compounding fee.
4. Exit option provided to shareholders as per SEBI circulars.

Detailed Analysis:

1. Compounding of Offences under Section 441 of the Companies Act, 2013:

The petition was filed by Capital Small Finance Bank Limited under Section 441 of the Companies Act, 2013, seeking compounding of offences and payment of compounding fee. The Tribunal has jurisdiction over this matter as the applicant company is registered under the Companies Act, 1956, with its office in Jalandhar, Punjab.

2. Non-compliance with Section 67(3) of the Companies Act, 1956:

The applicant company undertook 14 allotments of 47,71,575 equity shares during the financial year 2004-05. These allotments were made to employees, directors, existing shareholders, and other associates. However, the company inadvertently breached the thresholds provided under Section 67(3) of the Companies Act, 1956, which governs the offering of shares to the public. The company acknowledged this non-compliance as an erroneous and bona fide mistake.

3. Calculation and Payment of Compounding Fee:

The Securities and Exchange Board of India (SEBI) issued circulars allowing companies to avoid penal action by providing an exit option to investors. The applicant company’s Board of Directors approved the rectification process, offering an exit option to current shareholders of the 2004-05 allotment at a price of ?86.17 per equity share, including 15% interest per annum. The maximum fine for the default was calculated as ?31,87,000/- for 6364 days of default, plus ?13,000/- for the period from 01.11.2021 to 26.11.2021, totaling ?32,00,000/-.

4. Exit Option Provided to Shareholders as per SEBI Circulars:

The company provided an exit option to 470 shareholders holding 58,98,277 equity shares. The compliance with SEBI circulars was certified by an independent Chartered Accountant. The Registrar of Companies (RoC) confirmed that there were no complaints or pending investigations against the company.

Judgment:

The Tribunal considered the facts and circumstances and found it reasonable to compound the offence under Section 67(3) of the Companies Act, 1956, on payment of a compounding fee of ?8,00,000/-. The compounding fee must be deposited with the 'Pay and Accounts Officer' Ministry of Corporate Affairs, New Delhi, within one month from the receipt of the certified copy of the order. The RoC, Punjab, and Chandigarh will ensure the payment is made before effecting the compounding order. The petition CP No.52/Chd/Pb/2021 was disposed of accordingly.

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