9911796707
TMI Blog2016 (10) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... en filed U/S. 621A of Companies Act, 1956 read with Regulation 35, 40 and 44 of Company Law Board Regulations, 1991 by praying the Tribunal that the Applicants may be permitted to compound the unintended offence made under Section 149 of Companies Act, 2013 by imposing minimum consolidated composition fee and further direct the Registrar of Companies (RoC), Telangana and Andhra Pradesh to withdraw the complaint from Hon'ble Court of Special Judge for Economic offences-cum-VIII, AMSJ Court, Nampally, Hyderabad and to relieve the applicants of all legal consequences. It is to be noted that the provisions of Section 621A of the Companies Act, 1956 is analogous to Section 441 of the Companies Act, 2013, which gives the power to the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting of individuals as directors and shall have-(a) a minimum number of three directors in the case of a public company, two directors in the case of a private company, and one director in the case of a One Person Company; and (b) a maximum of fifteen directors: Provided that a company may appoint more than fifteen directors after passing a special resolution. Provided further that such class or classes of companies as may be prescribed, shall have at least one woman director. Rule 3 of the Companies (Appointment and Qualification of Directors) Rules, 2014 specifies that the following class of companies shall appoint at least one woman director- i. every listed company ii. Every other public company having - (a) paid-up share cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N: 07455741, at the Board meeting held on 01.03.2016, in accordance with the provisions of the Companies Act, 2013 and filed form DIR-12 with the Registrar of Companies, on 02.03.2016. However such appointment ought to have been made on or before 31.12.2014 as per said provision. Therefore the total delay in appointment of a woman director on the Board of Company is 14 (Fourteen) months. It is contended that the said mistake was unintentional. f. The Learned Counsel further filed additional information by way of an affidavit dated 16.08.2016 by stating that the Company is not carrying out commercial activities since Financial year 1999-2000 and the net worth of the Company has completely eroded and proposing to wind-up as there is no hope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e offence in question, especially when prosecution was already initiated and the same is in advance stage. 7. We have noticed that similar issue arose for consideration in the case of Reliance Industries Lts Vs. Unknown (1997 89 Comp Cases 67 CLB). After considering the relevant provisions and law, the Learned Member of Western Region Bench of CLB has held that the Company Law Board has been vested with the power, authority and jurisdiction to compound the offence and it is only when such compounding is done that the matter can be brought before the Learned Addl. Chief Metropolitan Magistrate, IIIrd Court, Esplanade, Mumbai to accord permission to compound the offences, which are punishable with fine or imprisonment or both. Accordingly, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue and law on the subject, it was ultimately held, by an order dated 12th May, 1997, that the exercise of powers by the Company Law Board under Section 621A(1) is independent of exercise of powers by the Court under sub- section (7), and all offences other than those which are punishable with imprisonment only or with imprisonment and also fine, can be compounded by the Company Law Board without any reference to sub- section (7), even in cases where the prosecution is pending in a criminal court. 11. We have also come across another decision on the issue rendered by the Hon'ble High Court of Delhi in V.L.S Finance Ltd Vs. Union of India (UoI) and others (2003 VIII AD Delhi 166, 2005, 123 Compnay Cases 433 Delhi, (2003)DLT 159) dealin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having jurisdiction and power to compound offences, where no fine or imprisonment or both is prescribed under the Act, is no longer res integra. The Tribunal can exercise its jurisdiction under Section 621A of Companies Act, 1956 or its corresponding Section 441 of Companies Act, 2013. Though the applicant has filed the Application under Section 621A of the Companies Act, 1956, later he has mentioned Section 441 of the Companies Act, 2013 in their Affidavit dated 16th August, 2016. Hence, we are considering the merits of the present case. 13. It is not in dispute that the Applicant Company has violated provisions of Section 149 of the Companies Act, 2013 with respect to the appointment of Woman Director as one of the Board of Directors. S ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
