Registrar of Companies has issued an order imposing a penalty on Draeger India Private Limited for violating Section 136 of the Companies Act, 2013. The company failed to circulate the annual audited financial statements to its members, directors, and statutory auditors before the annual general meeting held on 27th June 2022. As per Section 136, a copy of the financial statements, auditor’s report, and other required documents should be sent to every member of the company at least twenty-one days before the meeting. The penalty for non-compliance with this provision is twenty-five thousand rupees for the company and five thousand rupees for every officer of the company in default. The company and officers in default are required to pay the penalty within 30 days. Failure to pay within the prescribed time may lead to imprisonment or additional fines. The company has the option to file an appeal against this order within sixty days. The order has been sent to all parties involved and the Regional Director of the Ministry of Corporate Affairs for information.
GOVERNMENT OF INDIA
MINISTRY OF CORPORATE AFFAIRS
OFFICE OF THE REGISTRAR OF COMPANEIES
100, ‘EVEREST’,MARINE DRIVE
MUMBAI -400002
Order No. ROC(M)/RS/ADJ-ORDER/178657/2565 to 2568/113 Dated: 30/05/2023
Order for Penalty under Section 454 for violation of
Section 136 of the Companies Act, 2013
IN THE MATTER DRAECIZR INDIA PRIVATE LIMITED
CIN: U51507MH2004FTC143991)
Adjudicating Officer: Benudhar Mishra, ROC (ICLS), Mumbai Maharashtra.
Authorized person on behalf of Company:- Shri Devesh Vasisht, Practicing Company Secretory
Appointment of Adjudication officer:-
Ministry of Corporate Affairs vide its Gazette Notification No. A-42011/112/2014-Ad. II dated 24.03.2015 appointed the undersigned as Adjudicating Officer in exercise of the powers conferred by section 454 of the Companies Act, 2013 [herein after known as Act) read with Companies (Adjudication of Penalties) Rules, 2014 for adjudging penalties under the provisions of this Act.
1. Company:-
Whereas the Company DRAEGER INDIA PRIVATE LIMITED (herein after known as Company) is a registered company with this office under the provisions of Companies Act, 1956 having its registered address – 10th Floor, Commerz 2, International Business Park Oberoi Garden City Opp Western Express Highway, Goregaon East Mumbai MH 400063, India, as per the MCA portal.
2. Facts about the Case:
The company has filed application for adjudication for violation of provision of Section 136 of the Companies Act, 2013, As per section 136 of the Act, a copy of the financial statements, auditors report and every other document required by law to be annexed or attached to the financial statements, which are to he laid before a company in its general meeting, shall be sent to every , member of the company not less than twenty-one (21) days before the date of the annual general meeting. However, the company did not circulate annual audited financial statements to the members, directors and statutory auditors of the company before the annual general meeting of the company held on 27th June 2022. It is resulted in violation of–provisions of Section 136 of–the Act.
3. Section 136 of the Companies Act, 2013 are reproduced as under: –
136. Right of member to copies of audited financial statement:-
(1) a copy of the financial statement , including consolidated financial statements, if any, auditor’s report and every other document required by law to be annexed or attached to the financial statements, which are to be laid before a company in its general meeting, shall be sent to every member of the company, to every trustee for the debenture-holder of any debenture issued by the company, and to all persons other than such member or trustee, being the person so entitled, not less than twenty-one days before the date of the meeting:
Section 136 (3) If any default is made in complying with the provisions of this section, the company shall be liable to a penalty of twenty-five thousand rupees and every officer of the company who is in default shall be liable to a penalty of five thousand rupees.
4. Factor to he considered by the Adjudicating Officer: –
Whereas this office has received application from the Company, for adjudication of penalties under Section 454 of the Companies Act, 2013 for violation of 136 of the Companies Act, 2013, As per the application and records of this office, it is noticed that, the company did not circulate annual audited financial statements to the members, directors and statutory auditors of the company before the annual general meeting of the company held on 27th June 2022. Whereas this office has received application from the Company, for adjudication of penalties under Section 454 of the Companies Act, 2013 for violation of 136 of the Companies Act, 2013, As per the application and records of this office, it is noticed that the Company was required to comply the provision of section 136 of Companies Act, 2013 i.e. a copy of the financial statements, including consolidated financial statements, if any, auditor’s report and every other document required by law to be annexed or attached to the financial statements, which are to be laid before a company in its general meeting, shall be sent to every member of the company, to every trustee for the debenture-holder of any debentures issued by the company, and to all persons other than such member or trustee, being the person so entitled, not less than twenty-one days before the date of the meeting.
Therefore, the undersigned in exercise of power conferred under sub section 3 of Section 454 of the Companies Act, 2013 had issued hearing notice dated 21.03.2023, to the Company and officers in default for giving an opportunity to be heard and for submission in the matter, if any. ‘Meanwhile this office had received letter dated 213.2023 from Mr. Devesh Vasisht, Authorised representative of the Company for urgent hearing required an 21.32023. Accordingly, hearing was allowed with authorized representative of the Company on 2/3.2023 at 1:130 p.m. to adjudicate and pass necessary order for adjudicating the penalty as per the provisions of the Companies Act, 2013. During the Hearing authorised representative stated that the penalty is not to be imposed on Mr. Vijay lain as per General Circular No. 1/2020 dated 2/3/2020 of Hon’ble Ministry.
5. Finding
The company did not circulate annual audited financial statements to the members, directors and statutory auditors of the company before the annual general meeting of the company held on 27th June 2022, it is contravening the provision of section 136 of the Companies Act. 2013.
6. ORDER: –
a) Having considered the facts and circumstances of the case and aficr considering the factors above. I hereby impose a penalty on Company and every officer of the company who is in default as per table below for violation of provisions of section 136 of the Companies Act, 2013. I am of this opinion that. the penalty is commensurate with the aforesaid failure committed by the Notices.
b) The Noticee shall pay the said amount of penalty through “Ministry of Corporate Affairs” portal and proof of payment be produced for verification within 30 days of receipt of this order.
c) Appeal against this order may be filed in writing with the Regional Director (Western Region) within a period of sixty days from the date of receipt of this order in Form AD1 setting forth the grounds of appeal and shall be accompanied by a certified copy of this order. (Section 454 of the Act read with Companies (Adjudication of Penalties) Rules, 2014 as emended by Companies (Adjudication of Penalties) Amendment Rules, 2019].
d) In terms of the provisions of sub-rule (9) of Rule 3 of Companies (Adjudication of Penalties) Rules, 2014 as amended by Companies (Adjudication of Penalties) Amendment Rules, 2019, copy of this order is being sent to ail the applicants to the adjudication application and also to Office of the Regional Director, Western Region, Ministry of Corporate Affairs.
e) Your attention is also invited to 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 ninety days from the date of the receipt of the copy of the order, such officer 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. Regarding consequences of non-payment of penalty within the prescribed time limit of ninety days from the date of receipt of this order in terms of the provisions of Section 454(8) (i) of the Companies Act 2013, where Company does not pay the penalty imposed by the adjudicating officer or the Regional Director within a period of ninety days from the date of the receipt of the copy of the order, the company shall be punishable with fine which shall not be less than twenty five thousand rupees but which may extend to five lakh rupees.
f) Therefore, in ease of default in payment of penalty, prosecution will be filed under Section 454(8)(i) and (ii) of the Companies Act, 2013 at your OW:1 COM without any further notice.
(Benudhar Mishra)
Registrar of Companies and Adjudicating Officer,
Maharashtra, Mumbai
