As per theCompanies Act, 2013, if a company fails to comply with the provisions of Section 137 regarding the filing of financial statements and annual returns within the prescribed timeframe, the Adjudicating Authority (AA) has the power to impose penalties. However, if the company rectifies the default and files the required documents within 30 days of receiving the notice from the AA, no penalty will be imposed. This provision allows companies the opportunity to rectify their non-compliance and avoid penalties if they take timely corrective measures.
Order issued by Registrar of Companies, Hyderabad, in response to a petition filed by Jenbacher Distributed Power India Private Limited pertains to a violation of Section 137(2) of the Companies Act, 2013. The company failed to file its financial statements within the prescribed timeframe but rectified the default by filing the balance sheet within 30 days of the annual general meeting. The order references Section 137(3) and the proviso to Section 454(3) of the Companies Act, which state that if such default is rectified within 30 days of the notice by the adjudicating officer, no penalty shall be imposed, and all proceedings in respect of the default shall be concluded. Considering these provisions, the Registrar decides not to impose a penalty and directs the company to file the necessary form with the Registrar’s office.
F.NO. ROCH/074990TG2018FTC126585/TELANGANA/137 OF 201312022/3085 To 3088
BEFORE THE REGISTRAR OF COMPANIES, HYDERABAD 30 C‘
FOR THE STATE OF TELANGANA
2ND FLOOR CORPORATE BHAWAN, THATTIANNARAM, G.S.I. POST, BANDLAGUDA,
NAGOLE, HYDERABAD-500 068
PETITION NO. ADJ. 13717 OF 2022
IN THE OF MATTER OF SECTION — 137 OF COMPANIES ACT 2013
AND
BACHER DISTRIBUTED POWER INDIA PRIVATE LIMITED
A company incorperated under the Companies Act, 2013, CIN: U74990TG2018FTC126585, having its egistered office situated at Vatika Business Cente, 6th Floor, Divyasree Omega C Block, Hitech City Road, Kondapur, Hyderabad – 500081, Telangana, India.
ORDER UNDER SECTION 454 READ WITH SECTION 137 (3)
OF COMPANIES ACT 2013
FOR THE VIOLATION OF SECTION 137(2) OF COMPANIES ACT 2013
1. Whereas M/s. JENBACHER DISTRIBUTED POWER INDIA PRIVATE LIMITED (hereinafter referred as ‘Company’) is registered in the State of Telangana vide CIN Na U74990TG2018FTC126585 on 08.09.2018, having its registered office address at Vatika Business Centre, 6th Floor, Divyasree Omega C Block, Hitech City Road, Kondapur, Hyderabad – 500081, Telangana, has filed an suo moto application along with its officers in default uls 137(3) for adjudication of violation of section 137 (2) riw section 454 of the Companies Act, 2013 (the Act) seeking necessary
2. It is submitted by the applicants that the applicant company pursuant to section 137 of the Act, was required to file with Registrar a copy of the financial statement within 30 days from the due date on which the annual general meeting is held or where no annual general meeting is held in any year within 30 days from the date on which the annual general meeting should have been held together with the statement specifying the reasons for not holding the annual general, The due date for holding annual general meeting is 31is,December The company has held its AGM on 31s1 July 2020. However, the company has failed to file financial statement to the Registrar within 30 days of due date of AGM i.e., on or before 30th January 2020 which is violation of Section 137 (2) of the Companies Act, 2013 and liable under Section 137(3),
3. Further, the applicants have submitted that it held the annual general meeting on 31stJuly 2020 and filed the Balance sheet with the Registrar on 29th August 2020 i.e., within 30 days of AGM. Since the company has made the offence good by filing the Balance sheet with the Registrar, the company has prayed to pass an order for adjudicating the offence committed u/s 137 (2) of the Companies Act, 2013.
4. Whereas as per Section 137 (3) of the Companies Act, 2013 states the following:
(3) If a company fails to file the copy of the financial statements under Sub-Section (1) or Sub-Section (2). as the case may be, before the expiry of the period specified in section 403, the company shall be liable to a penalty of one thousand rupees for every day during which the failure continues but which shall not be more than ten lakh rupees, and the managing director and the Chief financial Officer, any other director who is charged by the Board with the responsibility of complying with the provisions of this section, and, in the absence of any such director. all the directors of the company, shall be liable to a penalty of one lakh rupees and in case of continuing failure, with further penalty of one thousand rupees for each day after the first during which such failure continues, subject to a maximum of five lakh rupees.”
5. Whereas Proviso to Sub-Section (3) of Section 454 of the Companies Act, 2013 contemplates the following (Inserted by the Companies (Amendment) Act, 2020, w.e.f 22/01/2021).
Provided that in case the default relates to non-compliance of sub-section (4) of section 92 or sub-section (1) or sub-section (2) of section 137 and such default has been rectified either prior to, or within thirty days of, the issue of the notice by the adjudicating officer, no penalty shall be imposed in this regard and all proceedings under this section in respect of such default shall be deemed to be concluded,”
6. A reasonable opportunity of being heard was given to the applicants on 9th November 2022 at 12 00 noon under Sub-section 4 of the Section 454 of the Companies Act, 2013. Mrs. Madhavi Choudary, Company Secretary in practice attended the personal hearing on behalf of the applicants on 9th November 2022 at 12.00 noon and orally submitted that the company has complied with the provisions of Section 137 of the Companies Act, 2013 by filing its balance sheet for the financial year ended 2019 on 291hAugust 2020. Since the proviso to Sub-Section (3) of Section 454 of the Act has been inserted by the Companies (Amendment) Act, 2020 which came in to fore w.e.f. 22nd January 2021, the Authorized Representative contended that no penalty for such violation of Section 137 of the Act should be imposed on the applicants and all proceedings under this section in respect of such default shall be deemed to be concluded.
7. After considering the submissions made in the application, and by the Authorized Representative, and the facts of the case, it is proved beyond doubt that the company and the officers of the company have defaulted in complying the provisions under Section 137 (2) of the Act and made the offence good on 29thAugust 2020 with th,:: delay of 213 days. Further, taking into the consideration the proviso of sub-section (3) of section 454 of the Companies Act, 2013 which inter alia provides that in case the default related to non-compliance of section 137 has been rectified either prior to, or within thirty days of the issue of the notice by the adjudicating officer, no penalty be imposed in this regard and all proceedings under this section in respect of such default shall be deemed to be concluded.
8. Having considering the facts and circumstances of the case besides oral submissions made by the representative of applicants at the time of hearing and after taking into the account the provisions mentioned in the relevant Rules followed by amemments in section 454 (3) of the Companies Act, 2013, I am of the opinion that no penalty shall be imposed for the default related to non-compliance of section 137 of the Act as the said default has been rectified by filing its balance sheet for the financial year 2018-19 on 29thAugust 2020 prior to issue of notice by Adjudicating Officer and direct the company to file e-Form INC-28, with the office of RoC, Hyderabad.
Issued under my hand and seal on this the 23rd of November 2022.
