M/s. Herboaatman Healthcare Private Limited vide SRN dated 12.11.2022 has filed e-form SH-7 for increase in Authorize Share Capital from 2,00,000/ to 1,00,00,000/- by way of meeting of members held on 29.09.2022 under the provisions of section 64 of the Companies Act, 2013 and Rules made thereunder.
Whereas, the Notice of increase in the authorized Capital ought to have been filed by way of Form SH-7 with the office of the undersigned on or before 10.2022 i.e. within 30 days from the date of passing above Resolution dated 29.09.2022 as required under the provisions of Section 64(1) of the Companies act, 2013. However, the said Notice has been filed with the office of the undersigned on 12.11.2022 vide SRN F42936096 with a delay of 15 Days. Thereby. the Company and its Director have committed default and violation of Section 64 of the Companies Act, 2013.
In response to the adjudication notice dated 16.12.2022 issued by the undersigned, the Authorized Representative of the company Mr. Murtuza Kaizar Mandorwala , remained present in this office on 12.01.2023 and stated that inadvertently the e-form SH-7 could not be filed in time frame as prescribed in under the provisions of section 64 of the Companies Act, 2013. He further stated that the company falls under the definition of small company, therefore, penalty may be levied in view of the provisions of section 2(85) of the Companies Act, 2013 read with section 446B of Companies Act, 2013.
The company falls under the criteria of small company as per the provision of section 446B of the Companies Act, 2013 . Hence necessary provision regarding penalty is applicable on the subject company.
MCA imposes penalty on directors and Company for delay of 15 days.
BEFOR THE ADJUDICATING OFFICER
REGISTRAR OF COMPANIES, GUJARAT, DADRA & NAGAR HAVELI
Order No. ROC-Guj/Adj. Order/Herboaatman /Sec. 64/6896 to 99 Dated: 19th Jan 2023
ORDER FOR PENALTY UNDER SECTION 454 OF THE COMPANIES ACT, 2013 READ WITH COMPANIES (ADJUDICATION OF PENALTIES) RULES, 2014 FOR VIOLATION OF SECTION 64 OF THE COMPANIES ACT, 2013.
IN THE MATTER OF M/S. HERBOAATMAN HEALTHCARE PRIVATE LIMITED
(U24230GJ2019PTC109793)
1. Adjudicating Officer : Shri R.C. Mishra, ROC, Gujarat
2. Presenting Officer : Shri Neelambuj, AROC, Gujarat.
3. Dealing Hand : Shri Deepak Chandwani, UDC
Appointment of Adjudication Authority: –
1. The Ministry of Corporate Affairs vide its Gazette Notification No. A-42011/112/2014-Ad.11 dated 24.03.2015 has appointed he undersigned as Adjudicating Officer in exercise of the powers conferred under section 4 4 of the Companies Act, 2013 (hereinafter known as Act) read with Companies (Adjudication of Penalties) Rules, 2014 (Notification No. GSR 254(E) dated 31.03.2014) for adjudging penalties under the provisions of Act.
Company:
2. Whereas M/s. Herboaatman Healthcare Private Limited (U24230GJ2019PTC109793) (herein after referred to as “company”) is a Company registered under the provisions of the Companies Act. 2013 (hereinafter referred to as “Act”) on 05.09.2019 in the state of Gujarat having its Registered office at 56 Samatya Bunglows ,Sec.A, At- Shela, Ta – Sanand Vill Shela, Ahmedabad — 380060 .
Fact of the case:
3. Whereas, M/s. Herboaatman Healthcare Private Limited vide SRN dated 12.11.2022 has filed e-form SH-7 for increase in Authorize Share Capital from 2,00,000/ to 1,00,00,000/- by way of meeting of members held on 29.09.2022 under the provisions of section 64 of the Companies Act, 2013 and Rules made thereunder.
4. Whereas, the Notice of increase in the authorized Capital ought to have been filed by way of Form SH-7 with the office of the undersigned on or before 10.2022 i.e. within 30 days from the date of passing above Resolution dated 29.09.2022 as required under the provisions of Section 64(1) of the Companies act, 2013. However, the said Notice has been filed with the office of the undersigned on 12.11.2022 vide SRN F42936096 with a delay of 15 Days. Thereby. the Company and its Director have committed default and violation of Section 64 of the Companies Act, 2013.
5. Whereas as per Section 64 of the Companies Act. 2013.
(b) an order made by the Government under sub-section (4) read with sub-section (6) of section 62 has the effect of increasing authorised capital of a company; or
(c) a company redeems any redeemable preference shares, the company shall file a notice in the prescribed form with the Registrar within a period of thirty days of such alteration or increase or redemption, as the case may be, along with an altered memorandum.
6. Whereas, as per provisions of Section 64(2) of the Companies Act, 2013, where any company fails to comply with the provisions of sub-section (1), such company and every officer who is in default shall be liable to a penalty of five hundred rupees for each day during which such default continues, subject to a maximum of five lakh rupees in case of a company and one lakh rupees in case of an officer who is in default.
7. Whereas, the Ministry of Corporate Affairs vide its Gazette notification No. SO 831 (E) dated 24.03.2015 appointed the Registrar of Companies/ undersigned as Adjudicating Officer in exercise of the Power conferred by Section 454 of the Companies Act, 2013 read with Companies (Adjudication of Penalties) Rules, 2014. Thereby, the Registrar of Companies is entrusted with power to adjudicate the penalty as provided under Section 64 of the Companies Act, 2013.
6. Whereas, the undersigned has reasonable cause to believe that the provision of section 64 of the Companies Act, 2013 has not been complied with within time frame as prescribed under the provisions of section 64(1) of the Companies Act, 2013. The Company and its officers in default have violated the provisions of section 64(1) of the Companies Act, 2013 which may be adjudicated under the purview of section 454(3) of the Companies Act, 2013. The company and every officer of the company who is in default are liable to be panelized u/s. 64(2) of the Companies Act, 2013.
Show Cause Notice, reply and personal hearing:-
9. Whereas, the office of the undersigned issued adjudication notice under section 454 of the Companies Act, 2013 for violation of section 64 of the Companies Act, 2013 to the Company and its officers in default on 16.12.2022 with request to rectify the aforesaid default within 15 days of the notice and remit the penalty as imposed by the undersigned.
10. In response to the adjudication notice dated 16.12.2022 issued by the undersigned, the Authorized Representative of the company Mr. Murtuza Kaizar Mandorwala , remained present in this office on 12.01.2023 and stated that inadvertently the e-form SH-7 could not be filed in time frame as prescribed in under the provisions of section 64 of the Companies Act, 2013. He further stated that the company falls under the definition of small company, therefore, penalty may be levied in view of the provisions of section 2(85) of the Companies Act, 2013 read with section 446B of Companies Act, 2013.
11. As per the provision of section 446 B of the Companies Act, 2013 that is as under;
“Notwithstanding anything contained in this Act, if penalty is payable for non-compliance of any of the provisions of this Act by a One Person Company, small company, startup company or Producer Company, or by any of its officer in default, or any other person in respect of such company, then such company, its officer in default or any other person, as the case may be, shall be liable to a penalty which shall not be more than one-half of the penalty specified in such provisions subject to a maximum of two lakh rupees in case of a company and one lakh rupees in case of an officer who is in default or any other person, as company or company incorporated under any special Act as per section 2(85) of Companies Act, 2013. Though it falls under the scope of small company.
Hence, the company falls under the criteria of small company as per the provision of section 446B of the Companies Act, 2013 . Hence necessary provision regarding penalty is applicable on the subject company.
ORDER:
12. While adjudging quantum of penalty under section 64 of the Companies Act, 2013, the Adjudication Officer shall have du regard to the following factors, namely:
(a) The amount of disproportionate gain or unfair advantage, whenever quantifiable, made as a result of default.
(b) The amount of loss caused to an investor or group of investors as a result of the default.
(c) The repetitive nature of default.
13. With regard to the above factors to be considered while determining the quantum of penalty, it is noted that the disproportionate gain or unfair advantage made by the notice or loss caused to the investor as a result of the delay on the part of the notice to redress the investor grievance are not available on the record. Further, it may also be added that it is difficult to quantify the unfair advantage made by the notice or the loss caused to the investors in a default of this nature.
14. Therefore , it is ordered that the flowing penalties (u/s. 446 B of the Companies Act, 2013) shall be paid by the company and its officers.
|
Delay in day |
Officer/ Organization in default | Penalty calculated as per section 64(2) of Companies Act, 2013 |
Penalty Imposed in view of Section 446(B) of C.A. 2013 |
|
(1) |
(2) | (3) |
(4) |
| 15 |
M/s. Herboaatman Healthcare Pvt.Ltd |
15*500= 7500/- | 3750/- |
| 15 | Sanjay Pannalal Shull Director | 15*500= 7500/- | 3750/- |
| 15 |
Rajeshkumar Gopaldas Dodke, Director |
15*500= 7500/- | 3750/- |
15. The noticee shall pay the amount o1 penalty individually for the company and its director (out of own pocked) by way of form No. INC-28 of e-payment (available on Ministry Website www.mac.gov.in) under “Pay miscellaneous fees” category in MCA fee and payment Service within 90 (ninety) days of this order and the Challan/SRN generated after payment of penalty through online mode shall be forwarded to this office along with the copy of form No. INC-28.
16. Appeal if any, against this order may be filed in writing with the Regional Director, North Western Regional, Ministry of Corporate Affairs, ROC Bhavan, Opp. Rupal Park, Nr. Ankur Bus stand, Naranpura, Ahmedabad (Gujarat) 380 013 within a period of sixty days from the date of receipt of this order, in Form ADJ setting forth the grounds of appeal and shall be accompanied by the certified copy of this order. (Section 454 of the Companies Act, 2013 read with the Companies (Adjudication of Penalties) Rules, 2014 as amended by Companies (Adjudication of Penalties) Amendment Rules. 2019).
the copy or order, the company shall be punishable with fine which shall not be less than twenty-five thousand rupees but which may extend to five lakhs rupees. Further as per section 454(8)(ii) of the Companies Act. 2013, where an officer of a company who is in default does not pay the penalty within a period of Sixty days (60 days) from the date of receipt of the copy of the order, such officers shall be punishable with imprisonment which may extend to six months or with fine which shall not be less than twenty-five thousand rupees but which may extend to one lakh rupees, or with both.
18. Your attention is also invited to section 454(8) of the Companies Act, 2013 in the event of non-compliance of this order which prosecution will be filed u/s. 454(8)(ii)of the companies Act, 2013 at your own costs without any further notice.
The adjudication notice stands disposed of with this order
(R. C. MISHRA) ICLS
Adjudicating officer,
Registrar of Companies,
Gujarat, Dadra and Nagar Haveli.
Signed this day of January, 2023.
