GOVERNMENT OF OF INDIA
MINISTRY OF CORPORATE AFFAIRS
OFFICE OF THE REGISTRAR OF COMPANIES.
GUJARAT, DADRA & NAGAR HAVELI
ROC Bhavan, Opp. Rupal Park,
Nr. Ankur Bus Stand, Naranpura, Ahmedabad (Gujarat) – 380013.
Tel. No.: 079-27438531, Fax : 079-27438371
Website : www.mca.gov.in E-mail : [email protected]
Order No. ROC-GJ/ ADJ-Order/Sec.454 (3)/ Prabhav Industries/ 2022-23/6818 to 20
Dated: 16 Jan 2023
BEFORE THE ADJUDICATING OFFICER
REGISTRAR OF COMPANIES, GUJARAT, DADRA & NAGAR HAVELI
ORDER FOR PENALTY UNDER SECTION 454 OF THE COMPANIES ACT, 2013 READ ITH COMPANIES (ADJUDICTION OF PENALTIES) RULES, 2014 and COMPANIES (ADJUDICATION OF PENALTIES) AMENDMENT RULES, 2019 FOR VIOLATION OF SECTION 12(1) OF THE COMPANIES ACT, 2013
IN THE MATTER OF M/S. PRABHAV INDUSTRIES LIMITED
(L45200GJ1995PLCO28373)
Date of Hearing: 10.01.2023
PRESENT :
1. Shri R. C. Mishra (ROC), Adjudicating Officer
2. Mr. Indrajit Vania (DRUG), Presenting Officer
Company/ Officers/Directors/KMP/Authorised Representative: Absent
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 the undersigned as Adjudicating Officer in exercise of the powers conferred under section 454 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. PRABHAV INDUSTRIES LIMITED (herein after referred to as “company”) is a company having its registered office at “Shop No 119, Model Township Recedency, Saroli, Kadodara Road, Surat, Gujarat-395010” was registered in the name and Style of EMPIRE INFRASTRUCTURE AND DEVELOPERS LIMITED under the provisions of the Companies Act, 1956/2013 (hereinafter referred to as “Act”) in the state of Gujarat. The CIN of the Company is L45200GJ1995PLCO28373
Fact about of the case:
3. The Securities and Exchange Board of India (SEBI) vide letter No. CFD/SEC 3/AA/KB/51482/1/2022 dated 06.10.2022 has informed that Stock Exchange was advised to issue advisory letters to the subject company, however, the advisory letter returned undelivered or the company failed to respond. Thus, it is clear that the company has violated the provisions of Section 12 of the Companies Act, 2013 From the above, it appears that the company has not maintained its registered office in compliance of the Section 12 of the Companies Act, 2013.
4. Relevant Provisions of Companies Act, 2013:
Section 12(1)- A company shall, within thirty days of its incorporation and at all times thereafter, have a registered office capable of receiving and acknowledging all communications and notices as may be addressed to it.
Section 12(4)- Notice of every change of the situation of the registered office, verified in the manner prescribed after the date of incorporation of the company, shall be given to the register within thirty days of the change, who shall record the same.
Section 12(8)- If any default is made in complying with the requirements of this section, the company and every officer who is in default shall be liable to a penalty of one thousand rupees for every day during which the default continues but not exceeding one lakh rupees.
Show Cause Notice & Reply:-
5. Adjudication Notices vide No. ROC-GJ/72/Sec.454 (3)/ Prabhav Industries/ STA(V)/2022-23/5714 to 5715 dated 21.11.2022 were issued to the company and its KMP for violation of Section 12(1) / Section 12(4) of the Act. But, no reply received from the company/director till date. The aforesaid Adjudication Notice dated 21.11.2022 addressed to the company has also received back undelivered with postal remarks “LEFT” in this office on 01.12.2022.
6. Meanwhile, 0/o ROC, Ahmedabad vide office order dated 19.12.2022 has deputed an official to carry out physical verification of the registered office of the company in term of Companies (Incorporation) Third Amendment Rules, 2022. An Official of this office has reported that company is not maintaining its registered office at Shop No 119, Model Township Recedency, Saroli, Kadodara Road, Surat, Gujarat-395010,India.The Official has also provide copy of Leave and Licence Agreement dated 05.07.2019 made between Mr. Mohallal Phoolchand Jain and Anil Bhagwan Val which shown that they have occupied the purporting registered office of the company and there is no exitance of the alleged company.
7. However, before, imposing penalty in the aforesaid matter, the onus of Adjudicating Officer to give a reasonable opportunity of being heard to company/ Officers in default in pursuant to Section 454(4) of the Companies Act, 2013 read with Rules made thereunder. Hence, Adjudicating Officer has issued a written Notice bearing No. ROC-GJ/72/Sec.454 (3)/ Prabhav Industries/ STA(V)/2022-23/6316 to 6317 dated 23.12.2022 were issued to the company and its KMP as per sub section 4 of section 454 of the Companies Act, 2013 and a hearing was fixed for 10.01.2023.
8. None of the representative of the company or director have either furnished their suitable reply in stipulated time or have appeared on the date so fixed. Hence, matter is being proceeded in the absence of reply of the company as the sufficient opportunity provided to the Company /Director and ex-parte order need to be passed as per the provisions of Section 454 of the Companies Act, 2013 read with sub Rule 11 of Rule3 of the Companies (Adjudication of Penalties) Rules, 2014.
9. While adjudging quantum of penalty under section 12(8) of the Act, the Adjudicating Officer shall have due 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.
10. The Presenting Officer further submitted that 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 noticee 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 noticee or the loss caused to the investors in a default of this nature.
11. The Presenting Officer further submitted that the company is Listed entity, hence, the company does fall under the ambit of a “small Company” in pursuant to sub-Section 85 of Section 2 of the Companies Act, 2013. Therefore, the provisions of imposing lesser penalty as per the provisions of Section 446B of the Companies Act, 2013 do not apply to the company.
ORDER
1. Having considered the facts and circumstances of the case and after taking into accounts the factors above, the undersigned has reasonable cause to believe that the company and its officers have failed to maintain its registered office as per the requirement of Section 12(1) of the Companies Act, 2013. I hereby imposed a penalty on company and Directors as per table below for violation of section 12(1) of the Companies Act, 2013. I am of the opinion that penalty is commensurate with the aforesaid failure committed by the Noticees:
* From the date of issue of Notice dated 21.11.2022 issued to the company to the date of hearing i.e. 10.01.2023. Hence, the default has been continuing since then.
2. The Company/Officer are further directed to rectify the default failing which this office shall be proceeded further the matter in pursuant to Section 454A of the Companies Act, 2013 for the non-compliance of the aforesaid provisions of the Companies Act, 2013.
3. The noticee shall pay the amount of penalty individually for the company and its officers from their personal sources/income by way of e-payment available on Ministry website mca.gov.in under “Pay miscellaneous fees” category in MCA fee and payment Services under Rule 3(14) of Company (Adjudication of Penalties) (Amendment) Rules, 2019 within 60 days from the date of receipt of this order and copy of this adjudication order and Challan/SRN generated after payment of penalty through online mode shall be filed in INC-28 under the MCA portal without further reference.
4. Appeal against this order may be filed in writing with the Regional Director, North Western Region, Ministry of Corporate Affairs, ROC BHAVAN, OPP. RUPAL PARK, NR. ANKUR BUS STAND, NARANAPURA, AHMEDABAD (GUJARAT)-380013 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(5) & 454(6) of the Companies Act, 2013 read with the Companies (Adjudicating of Penalties) Rules, 2014 as amended by Companies (Adjudication of Penalties) Amendment Rules, 2019]..
5. Your attention is also invited to Section 454(8)(i) and 454(8) (ii) of the Companies Act, 2013, which state that in case of non-payment of penalty amount, the company shall be punishable with fine which shall not less than Twenty Five Thousand Rupees but which may extend to Five Lakhs Rupees and officer in default shall be punishable with Imprisonment which may extend to Six months or with fine which shall not be less than Twenty Five Thousand Rupees by which may extend to one Lakhs Rupees or with both.
The adjudication notice stands disposed of with this order.
(R.C. MISHRA, ICLS)
REGISTRAR OF COMPANIES &
ADJUDICATING OFFICER
MINISTRY OF CORPORATE AFFAIRS
GUJARAT, DADRA & NAGAR HAVELI
(R.C. MISHRA, ICLS)
REGISTRAR OF COMPANIES &
ADJUDICATING OFFICER
MINISTRY OF CORPORATE AFFAIRS
GUJARAT, DADRA & NAGAR HAVELI
