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TMI Blog2021 (2) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... king to pass an order for rectification of Register of Members of the Applicant Company in particular reference by cancelling the excess 51,889 equity shares of Rs. 10/- each excess allotted to Respondent No. 1 on 20th March 2019 whereby the amount paid up on the excess 51,889 equity shares is credited to the securities premium account; to direct Respondent No.2 to effect the said cancellation etc. 2. Brief facts of the case, as mentioned in the case, which are relevant to the issue in question, are as follows: (1) "M/s. E to E Transportation Infrastructure Private Limited" (hereinafter referred as Applicant/ Petitioner Company") was incorporated as a Private Company, limited by shares under the Companies Act, 1956 on 9th March 2010 with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 2019 along with their Board of Director's resolution. Therefore, no other person is to be effected by virtue of cancellation in question and thus seeking to dispense with the requirement of advertisement as per Rule 70 read with Rule 35 of the NCLT, 2016. 3. The Respondent No.2, Registrar of Companies, has filed a Report 23rd September 2020 by inter-alia stating as follows: 1) The Applicant Company has filed Statutory Returns upto 31/3/2019 in form AOC-4XBRL vide SRN - R05715586 and form MGT-7 vide SRN R27744234 on 17/ 10/2019 & 30.12.2019. 2) There is no reduction of share capital, as per Section 66 of the Companies Act, involved in instant case, and the Company has applied for rectification of Register of Members in pursuant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of members (1) If the name of any person is, without sufficient cause, entered in the register of members of a company, or after having been entered in the register, is, without sufficient cause, omitted therefrom, or if a default is made, or unnecessary delay takes place in enteringin the register, the fact of any person having become or ceased to be a member, the person aggrieved, or any member of the company, or the company may appeal in such form as may be prescribed, to the Tribunal, or to a competent court outside India, specified by the Central Government by notification, in respect of foreign members or debenture holders residing outside India, for rectification of the register. (2) The Tribunal may, after hearing the parties t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extend to one year or with fine which shall not be less than one lakh rupees but which may extend to three lakhrupees, or with both. Rules 70 of NCLT Rules 2016 read as under: 70. Appeal under sections 58 and 59- (1) The appeals against the refusal for registration of transfer or transmission of securities under section 58 or for rectification of register of members under section 59 shall be made to the Tribunal by way of a petition in Form No. NCLT. 1 and shall be accompanied by such documents as are mentioned in Annexure B: Provided that a copy of the appeal shall be served on the concerned company at its registered office immediately after filing of the petition with the Tribunal. (2) The petitioner shall at least fourteen days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing option: To cancel/ reduce excess 51,889 equity shares allotted on conversion to Zephyr Peacock India Fund II Limited such that the post reduction paidup equity shares held by Zephyr Peacock India Fund II Limited are in compliance with the Regulation 11 (1) (b) of TISPRO Regulation with an appropriate approval from Registrar of Companies or National Company Law Tribunal or any other authority as may be required under the Companies Act, 2013. Further we confirm that such erroneous conversion and also, the cancellation/ reduction of excess 51,889 equity share doesn't have any cash flow implications. The excess 51,889 equity shares having aggregate face value of Rs. 5, 18,890/- will be reduced from paid up capital and will be adde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Second Respondent could not examine as to whether the issue in question would fall within their purview/jurisdiction or not. Therefore, they have filed formal reply without adverting the main issue in question. The RBI has clearly mentioned in their letter cited above that onus to adhere to FEMA regulations, extant FDI policy including investments in the permitted sectors, sectoral caps/ limits, mode of payment, pricing guidelines as applicable, etc., rests solely with the entity and the cancellation of excess shares allotted will not come under purview of RBI. Therefore, RBI, has refused to accept the request of the Applicant to accept the violation of FEMA Regulations by saying it is responsibility of Applicant to adhere to those Regula ..... X X X X Extracts X X X X X X X X Extracts X X X X
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