The Registrar of Companies (ROC), Gujarat, issued an order penalizing Narmada Thermal Power Pvt. Ltd. and its directors for failing to file e-forms MGT-14 within the prescribed timeframe under Section 117 of the Companies Act, 2013. The violation pertains to resolutions passed for approving directors’ reports and financial statements for FY 2016-17, 2017-18, and 2018-19, as well as a special resolution for providing a corporate guarantee. Despite the company’s suo-moto adjudication application citing inadvertence and lack of commercial activity as reasons for the delay, the ROC determined that the company and its directors are liable for penalties. The order imposes financial penalties on the company and its officers, considering factors such as the nature of the default and the absence of any recorded disproportionate gain or loss to investors. The penalties range from ₹50,000 for individual directors to ₹2,00,000 for the company, underlining the importance of compliance with statutory filing requirements.
GOVERNMENT OF INDIA
MINISTRY OF CORPORATE AFFAIRS
OFFICE OF THE REGISTRAR OF COMPANIES,
GUJARAT, DADRA & NAGAR HAVELI
ROC (Mayan. Opp. Rupal Park.
Nr. Ankur Bus Stand, Naranpura, Ahmedabad (Gujarat) – 380013.
Tel. No.: 079-27438531, Fax : 079-27438371
Website : www.mca.govin E-mail : roc.ahmedabadOmca.gov.in
Order No. ROC-GJ/U/S-454/ NARMADA THERMAL/SEC.117/2 024-25/2151 to 60 DATED: 27 AUG 2024
BEFORE THE ADJUDICATING OFFICER
REGISTRAR OF COMPANIES, GUJARAT, DADRA & NAGAR HAVELI
ORDER IN THE MATTER OF ADJUDICATION OF PENALTY UNDER SECTION 454 (3) OF THE COMPANIES ACT 2013 READ WITH RULE 3 OF THE COMPANIES (ADJUDICATION OF PENALTIES) RULES, 2014 FOR VIOLATION OF SECTION 117 OF THE COMPANIES ACT, 2013 READ WITH RULE 24 OF THE COMPANIES (MANAGEMENT AND ADMINISTRATION) RULES, 2014
PRESENT :
1. Shri Keerthi Thej N. (ROC), Adjudicating Officer
2. Indrajit Vania (DROC), Presenting Officer
Company/ Officers/Directors/KMP/Authorized Representative : Mr. Neeraj Trivedi, Practicing Company Secretary, Authorised Representative of the Company/Directors
Appointment of Adjudication Authority:-
1. The Ministry of Corporate Affairs vide its Gazette Notification No. A-42011/112/2014- Ad.II dated 24.03.2015has 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. The Registrar of Companies vide the Companies (Amendment) Act, 2019 is entrusted with power to adjudicate penalty as provided under Section 10A(2) of the Companies Act with effect 02.11.2018.
2. NARMADA THERMAL POWER PRIVATE LIMITED (herein after referred to as “company”) is a company having its registered office at “Block No.492, N.H.No.8, Palsana, Surat-394315” registered under the provisions of the Companies Act, 2013 (hereinafter referred to as “Act”) in the State of Gujarat. The CIN of the Company is U29199GJ1997FTC032397 as per the record maintained on the MCA’s Website.
3.
Fact of the case
4. During Balance sheet is ready, auditor conducts audit and while conducting audit, they review the Financial Statements including the Directors Report. After reviewing the same, they issue their independent Audit Report. The Financial Statements including Directors Report is to be placed before the Board of Directors for approval and Signature. After completion of entire procedure in respect of approval and signature of financial Statements by way of passing the Board Resolution, the Company needs to forward the same to the members, Auditors, directors along with notice conducting Annual General Meeting. The same is to be .approved by the Members of the Company in ensuring AGM of the Company. Pursuant Section 117 of the Act read with Rule 24 of the Companies (Management and Administration) Rules, 2014, Once the Financial Statements and the Board’s Report are approved by the Board by passing Board Resolution, the said copy of resolution(s) are to be submitted to the Registrar of Companies through e-form MGT-14 within period of 30 days from the date of passing resolution in the Board Meeting. The company has stated its suo-moto adjudication application that upon verification of the records, it has been observed that the company has failed in the submission of certain following e-forms MGT-14 not filed with the Registrar of Companies within 30 days from the date of passing resolution in the Board Meeting,
| Sr.
No. |
Nature of Resolution | Date of Board/ General Meeting | Due date of Filing MGT-14 |
| 1 | To Consider and approved Directior’s report alongwith auditor’s report for the year ended 31.03.2017 (F.Y.2016-17) | 17.08.2017 | 16.09.2017 |
| To consider and approved financial Statements of the year ended 31.03.2017 (FY 2016-17) | |||
| 2 | To Consider and approved Directior’s report alongwith auditor’s report for the year ended 31.03.2018 (F.Y.2017-18) | 11.08.2018 | 10.09.2018 |
| To consider and approved financial Statements of the year ended 31.03.2018 (FY 2017-18) | |||
| 3 | Special Resolution for providing Corporate Guarantee to Bank of Baroda against the loan taken by Gujarat Polyfilm Limited | 25.05.2018 | 24.06.2018 |
| 4 | To Consider and approved Directior’s report alongwith auditor’s report for the year ended 31.03.2019 (F.Y.2018-19) | 29.08.2019 | 28.09.2019 |
| To consider and approved financial Statements’ of the year ended 31.03.2019 (FY 2018-19) |
Which attracts a violation of Section 117(1) of the Companies Act, 2013. Hence, the company, its directors, officers in defaults are liable to be penalized under Section 117(2) of the Companies Act, 2013. Accordingly, the company has filed suo-moto adjudication application for violation of section 117 of the Companies Act, 2013. The company has also filed e-form GNL-1 bearing SRN No. F93573582 dated 19.03.2024 to condone the delay for filing resolution passed u/s 14(1) of the Companies Act, 2013.
Suo-moto adjudication application :-
5. The company has filed suo-moto adjudication application and state that the act of delay in submission of the form MGT-14 as stated above was inadvertent. The company was not/hardly doing any commercial activity wherein neither any person wiling to join as Company Secretary or Chief Financial Officer of the Company. Further the promoters being technocrat where not knowing such requirement. Whatever non-compliance has been identified by the Management all essential remedial actions have been initiated and the offences have been made good.
Submission of the Presenting Officer
6. The presenting Officer further submitted that additional fees paid for delayed filing prescribed under the Companies (The Registered offices and Fees) Rules, 2014 is only a fees paid for filing of form as the cost of facility of delayed filing and it is neither Fine nor Penalty specified under the Act. Fine is “a sum of money exacted as a penalty by a court of law for the criminal liability” and Penalty is “a sum of money imposed for breaking a law, rule, or contract in the nature of civil default” by an authority prescribed under the law other than the Courts of Justice. Therefore, payment of additional fee does not absolve the company/directors of the default and from payment of Penalty as prescribed under the Act.
7. The Presenting Officer further submitted that as per the MCA21 record, the company have filed e-forms MGT-14 (Four e-forms) with delay which is not within prescribed time frame as per the relevant provision of the act and therefore, default has been occurred in complying with the aforesaid statutory provisions by delay filing and for such default the Company and officers who is in default are liable for penalty under Section 117(2) of the Act. Accordingly, the Adjudicating officer empowered to impose penalty under the provisions of section 454 r/w section 117(2) of the Companies Act, 2013.
8. The Presenting Officer further submitted that it is observed from the last Financial Statement for the F.Y. ended 31.03.2023 available on MCA portal, the paid-up capital of the company is Rs. 14,91,00,700/- and Turnover is Rs. Nil/-. Hence, as per Section 2(85) of the Companies Act, 2013 read with Companies (Specification of definition details) Amendment Rules, 2022 notified vide Ministry’s Notification No. G.S.R. 700(E) dated 15.09.2022, the Company does not fall under the ambit of “small company”. 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. While adjudging quantum of penalty under section 117(2) 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.
2. With regard to the above factors that are 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.
3. 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 in default have failed complied with the provisions of Section 117(1) of the Companies Act, 2013 with the aforementioned circumstances. I hereby imposed penalty as under:
For Financial Year 2016-17 MGT-14 B/R dated 17.08.2017 vide SRN AA7053619 filed on 11.03.2024.
| Nature of default | Penalty imposed on company/
Director |
No. of days | Penalty calculated, Default (Rs. in pursuant to Section 117(2) of the Companies Act, 2013 |
Maximum penalty in pursuant to Section 117(2) of the Companies Act 2013 |
Penalty Imposed (In Rs.) |
| Violation of Section 117(1) of the Companies Act, 2013 | NARMADA THERMALPOW ER PRIVATE LIMITED | 2370 | 10,000+2370*100/- =2,47,000 | 200,000 | 2,00,000 |
| RAKESHKUMAR G SARAWAGIDIR ECTOR w.e.f. 20.11.2010 | 2370 | 10,000+2370*100/- =2,47,000 | 50,000 | 50,000 | |
| MAHENDRA KUMAR CHAUDHARY DIRECTOR w.e.f.17.08.2001 | 2370 | 10,000+2370*100/- =2,47,000 | 50,000 | 50,000 | |
| HARISHKUMAR T PATEL DIRECTOR w.e.f. 16.10.2009 | 2370 | 10,000+2370*100/- =2,47,000 | 50,000 | 50,000 | |
| PRAMOD KUAR CHAUDHARY DIRECTOR w.e.f. 02.03.2009 | 2370 | 10,000+2370*100/- =2,47,000 | 50,000 | 50,000 | |
| RAJKUMAR D AGARWAL DIRECTOR w.e.f. 30.09.2013 | 2370 | 10,000+2370*100/-=2,47,000 | 50,000 | 50,000 | |
| MAHENDRA SHYAMSUNDER SHAREMA CFO w.e.f. 16.05.2000 | 2370 | 10,000+2370*100/-=2,47,000 | 50,000 | 50,000 | |
| BHARATKUMAR T. PATEL DIRECTOR w.e.f.16.10.2009 | 2370 | 10,000+2370*100/- =2,47,000 | 50,000 | 50,000 |
For Financial Year 2017-18 MGT-14 B/R dated 11.08.2018 vide SRN AA7053889 filed on 11.03.2024
| Nature of default | Penalty imposed on company/ Director | No. of days | Penalty calculated Default (Rs.) in pursuant to Section 117(2) of the Companies Act, 2013 | Maximum penalty in pursuant to Section 117(2) of the Companies Act, 2013 | Penalty Imposed (In Rs.) |
| Violation of Section 117(1) of the Companies Act, 2013 | NARMADA THERMAL POWER PRIVATE LIMITED | 2009 | 10,000+2009*100/- =2,10,900 | 200,000 | 2,00,000 |
| RAKESHKUMAR G SARAWAGI DIRECTOR w.e.f. 20.11.2010 | 2009 | 10,000+2009*100/- =2,10,900 | 50,000 | 50,000 | |
| MAHENDRA KUMAR CHAUDHARY DIRECTOR w.e.f. 17.08.2001 | 2009 | 10,000+2009*100/- =2,10,900 | 50,000 | 50,000 | |
| HARISHKUMART PATEL DIRECTOR w.e.f. 16.10.2009 | 2009 | 10,000+2009*100/- =2,10,900 | 50,000 | 50,000 | |
| PRAMOD KUAR CHAUDHARY DIRECTOR w.e.f. 02.03.2009 | 2009 | 10,000+2009*100/- =2,10,900 | 50,000 | 50,000 | |
| RAJKUMAR D AGARWAL DIRECTOR w.e.f. 30.09.2013 | 2009 | 10,000+2009*100/- =2,10,900 | 50,000 | 50,000 | |
| MAHENDRA SHYAMSUNDER SHAREMA CFO w.e.f. 16.05.2000 | 2009 | 10,000+2009*100/- =2,10,900 | 50,000 | 50,000 | |
| BHARATKUMAR T. PATEL DIRECTOR w.e.f.16.10.2009 | 2009 | 10,000+2009*100/- =2,10,900 | 50,000 | 50,000 |
For Financial Year 2017-18 MGT-14 S/R dated 25.05.2018 vide SRN AA7073066 filed on 14.03.2024
| Nature of default | Penalty imposed on company/ Director | No. of days | Penalty calculated Default (Rs.) in pursuant to Section 117(2) of th Companies Act, 2013 | Maximum penalty in pursuant to Section 117(2)of the Companies Act, 2013 | Penalty Imposed (In Rs.) |
| Violation of Section 117(1) of the Companies Act, 2013 | NARMADA THERMAL POWER PRIVATE LIMITED | 2090 | 10,000+2090*100/- =2,19,000 | 200,000 | 200,000 |
| RAKESHKUMAR G SARAWAGI DIRECTOR w.e.f. 20.11.2010 |
2090 | 10,000+2090*100/- =2,19,000 | 50,000 | 50,000 | |
| MAHENDRA KUMAR CHAUDHARY DIRECTOR w.e.f. 17.08.2001 | 2090 | 10,000+2090*100/- =2,19,000 | 50,000 | 50,000 | |
| HARISHKUMAR T PATEL DIRECTOR w.e.f. 16.10.2009 | 2090 | 10,000+2090*100/- =2,19,000 | 50,000 | 50,000 | |
| PRAMOD KUAR CHAUDHARY DIRECTOR w.e.f. 02.03.2009 | 2090 | 10,000+2090*100/- =2,19,000 | 50,000 | 50,000 | |
| RAJKUMAR DAGARWAL DIRECTOR w.e.f. 30.09.2013 | 2090 | 10,000+2090*100/- =2,19,000 | 50,000 | 50,000 | |
| MAHENDRA SHYAMSUNDER SHAREMA CFO w.e.f. 16.05.2000 | 2090 | 10,000+2090*100/- =2,19,000 | 50,000 | 50,000 | |
| BHARATKUMAR T. PATEL DIRECTOR w.e.f.16.10.2009 | 2090 | 10,000+2090*100/- =2,19,000 | 50,000 | 50,000 |
For Financial Year 2018-19 MGT-14 B/R dated 29.08.2019 vide SRN AA7054044 filed on 11.03.2024.
| Nature of default | Penalty imposed on company/
Director |
No. of days | Penalty calculated Default (Rs.1 in pursuant to Section 117(2) of the Companies Act, 2013 | Maximum penalty in pursuant to Section 117(2) of the Companies Act, 2013 | Penalty Imposed (In Rs.) |
| Violation of Section 117(1) of the Companies Act, 2013 | NARMADA THERMAL POWER PRIVATE LIMITED | 1626 | 10,000+1626*100/- =1,72,600 | 200,000 | 1,72,600 |
| RAKESHKUMAR G SARAWAGI DIRECTOR w.e.f. 20.11.2010 |
1626 | 10,000+1626*100/- =1,72,600 | 50,000 | 50,000 | |
| MAHENDRA KUMAR CHAUDHARY DIRECTOR w.e.f. 17.08.2001 | 1626 | 10,000+1626*100/- =1,72,600 | 50,000 | 50,000 | |
| HARISHKUMAR T PATEL DIRECTOR w.e.f. 16.10.2009 | 1626 | 10,000+1626*100/- =1,72,600 | 50,000 | 50,000 | |
| PRAMOD KUAR CHAUDHARY DIRECTOR w.e.f. 02.03.2009 | 1626 | 10,000+1626*100/- =1,72,600 | 50,000 | 50,000 | |
| RAJKUMAR D AGARWAL DIRECTOR w.e.f. 30.09.2013 | 1626 | 10,000+1626*100/- =1,72,600 | 50,000 | 50,000 | |
| MAHENDRA SHYAMSUNDER SHAREMA CFO w.e.f. 16.05.2000 | 1626 | 10,000+1626*100/-
=1,72,600 |
50,000 | 50,000 | |
| BHARATKUMART. PATEL DIRECTOR w.e.f.16.10.2009 | 1626 | 10,000+1626*100/- =1,72,600 | 50,000 | 50,000 | |
| ADITYA KUMAR SETHI COMPANY SECRETARY w.e.f. 01.09.2019 | 1626 | 10,000+1626*100/- =1,72,600 | 50,000 | 50,000 |
Total penalty for violation 117 of Companies Act, 2013 for company and its officers in default is as under: –
| Penalty for violation 117 of Companies Act, 2013 |
Date of Board/ General Meeting 17.08.2017 (In Rs.) | Date of Board/ General Meeting 11.08.2018 (In Rs.) | Date of Board/General Meeting 25.05.2018 (In Rs.) | Date of Board/ General Meeting 29.08.2019 (In Rs.) | Total Penalty(In Rs.) |
| NARMADA THERMAL POWER PRIVATE LIMITED | 2,00,000 | 2,00,000 | 2,00,000 | 1,72,600 | 7,72,600 |
| RAKESHKUMAR G SARAWAGI DIRECTOR w.e.f. 20.11.2010 | 50,000 | 50,000 | 50,000 | 50,000 | 2,00,000 |
| MAHENDRA KUMAR CHAUDHARY DIRECTOR w.e.f. 17.08.2001 | 50,000 | 50,000 | 50,000 | 50,000 | 2,00,000 |
| HARISHKUMAR T PATEL DIRECTOR w.e.f. 16.10.2009 | 50,000 | 50,000 | 50,000 | 50,000 | 2,00,000 |
| PRAMOD KUAR CHAUDHARY DIRECTOR w.e.f. 02.03.2009 | 50,000 | 50,000 | 50,000 | 50,000 | 2,00,000 |
| RAJKUMAR D AGARWAL DIRECTOR w.e.f. 30.09.2013 | 50,000 | 50,000 | 50,000 | 50,000 | 2,00,000 |
| MAHENDRA SHYAMSUNDER SHAREMA CFO w.e.f. 16.05.2000 | 50,000 | 50,000 | 50,000 | 50,000 | 2,00,000 |
| BHARATKUMAR T. PATEL DIRECTOR w.e.f.16.10.2009 | 50,000 | 50,000 | 50,000 | 50,000 | 2,00,000 |
| ADITYA KUMAR SETHI COMPANY SECRETARY w.e.f. 01.09.2019 | Nil | Nil | Nil | 50,000 | 50,000 |
AO is of the opinion that penalty is commensurate with the aforesaid default committed by the Noticees:
3. The noticees 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 and intimation should be submitted to this office.
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.
Registrar of Companies
& Adjudicating Officer
Gujarat, Dadra & Nagar Haveli.
