MCA concluded that the company and its Officers in default are liable for penalty under Section 117(2) of the Companies Act, 2013 for non-filing of Special resolution in MGT-14, which attracted non compliance of the provisions of Section 117(1) of the Companies Act, 2013 and the undersigned has reasonable cause to believe that the company and its Director(s) have violated the provisions of Section 117(1) of the Companies Act, 2013 as noticed from MGT-7/Annual Return available under the MCA21 portal. In view the facts narrated above, the company and its directors /officers, in default are liable for penalty as per Section 117(2) of the Companies Act.
ROC-G /ADJ-Order/Sec. 454/ EASY PAY/2022-23/6127 to 31
Dated: 16/01/2023
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 OP 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
IN THE MATTER OF M/S. EASY PAY PRIVATE LIMITED
(U74900GJ2014PTC078939)
Date of hearing- 10.01.2023
PRESENT :
1. Shri R.C. Mishra (ROC), Adjudicating Officer
2. Mr. Indrajit Vania (DROC), Presenting Officer
Company/ Officers/Directors/KMP/Authorized Representative : Ms. Jalpa jignashti Shah, PCS, Authorised representative of Company/Directors
Appointment of Adjudication Authority
1. The Ministry of Corporate Affairs vide its Gazette Notification No. 42011/112/2014-Ad.II 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. M/s. EASY PAY PRIVATE LIMITED is a company registered under the provisions of the Companies Act, 1956/2013 in the State of Gujarat, having CIN U74900Gj2014PTC07893 and presently having its registered office situated at “1, Rangin Park Part 4, Opp. Rajpath Club, S.G. Highway Ahmedabad, Gujarat-380054, India”
Fact about of the case
3. During the procedural Scrutiny of e-form MGT-14 filed vide SRN F43367572 dated 14.11.2022, it is observed that the said SRN /MGT-14 filed for filing of resolution dated 29.03.2022 regarding Alteration of the Articles of Association of the Company to incorporate changes as per Shareholders Agreement dated 03rd March 2022 by delay of 200 days. Whereas, the aforesaid e-form is required to be filed on or before 28.04.2022 as per the requirement of the provisions of the Companies Act, 2013. Since there is delay in filing of the form, this form cannot be filed unless e-Form INC-28 for condonation of the delay has been filed. However, the company has not complied with the provisions of the Companies Act, 2013 as required. It is also observed that the company has not attached copy of special resolution, Notice calling EOGM with the aforesaid e-Form MGT-14 in pursuant to Section 117 read with Section 102 of the Companies Act, 2013. In view of the above-mentioned facts, it is revealed that the company has failed to file copy of member’s special resolution and explanatory statement etc. as per the requirement of Section 117 read with Section 14(1) of the Companies Act, 2013 for the purpose mentioned above in due time i.e. within 30 days and thus company and its officers in default liable to penalize under Section 117(2) of the Companies Act, 2013.
4. Relevant Provisions of Companies Act, 2013:
Section 117(1) of the Companies Act, 2013:
A copy of every resolution or any agreement, in respect of matters specified in sub-section (3) together with the explanatory statement under section 102, if any, annexed to the notice calling the meeting in which the resolution is proposed, shall be filed with the Registrar within thirty days of the passing or making thereof in such manner and with such fees as may be prescribed ;
Rule 24 of the Companies (Management and Administrations) Rules, 2014 provides that “A copy of every resolution or any agreement required to be filed, together with the explanatory statement under section 102, if any, shall be filed with the Registrar in Form No. MGT.14 along with the fee.”
Section 117(2) of the Companies Act, 2013 got amended w.e.f. 21.12.2020, which now reads as follows:
If any company fails to file the resolution or the agreement under sub-section (1) before the expiry of the period specified therein, such company shall be liable to a penalty of ten thousand rupees and in case of continuing failure, with a further penalty of one hundred rupees for each day after the first during which such failure continues, subject to a maximum of two lakh rupees and every officer of the company who is in default including liquidator of the company, if any, shall be liable to a penalty of ten thousand rupees and in case of continuing failure, with a further penalty of one hundred rupees for each day after the first during which such failure continues, subject to a maximum of fifty thousand rupees.
Show Cause Notice, reply and personal Hearing:-
5. An Adjudication Notice was issued to company and its directors vide No. ROC-GUADJ-75/STA(V)/u/s 454/ EASY PAY/2022-23/5913 to 5916 dated 01.12.2022 in pursuant to Section 454 of the Companies Act, 2013 read with Companies (Adjudication of Penalties) Rules 2014 for violation of Section 117(1) read with Rules made thereunder. No reply has received from the company in response to aforesaid Notice(s).
6. Thereafter, a ‘written Notice” vide No. ROC-GJ/ADJ-75/STA(V)/u/s 454/ EASY PAY/2022-23/6312 to 6315 dated 23.12.2022 were issued to the company and its officers as per sub-section 4 of 454 of the Companies Act, 2013 read with Rule 3 of Companies (Adjudication of Penalties) Rules, 2014 and a hearing was fixed for 10.01.2023. Ms. Jalpa Jignashu Shah, Practicing Company Secretary, Authorised representative of company appeared on the scheduled date of hearing and attended the hearing conducted on 10.01.2023 on behalf of the company and /or the director(s)/applicant(s) and committed the default for delay in filing of resolution in prescribed e-Form MGT-14. Ld. PCS pleaded for not charging any penalty.
7. The Presenting Officer responded that as per provisions of Section 117(1) of the Act, the company is required to file copy of special Resolution through e-Form MGT-14 within 30 days of passing the resolution. However, company has failed to file special resolution passed by the members under the MCA21 portal within 30days. Hence, default counted during the period from 28.04.2022 to 13.11.2022 in pursuant to Section 117 of the Companies Act, 2013 read with Rules made thereunder. Therefore, the company and its officers are liable for a penalty as per Section 117(2) of the Companies Act, 2013 for delay filing of required e-form MGT-14 under the MCA21 portal.
8. Under the above circumstances, it is concluded that the company and its Officers in default are liable for penalty under Section 117(2) of the Companies Act, 2013 for non-filing of Special resolution in MGT-14, which attracted non compliance of the provisions of Section 117(1) of the Companies Act, 2013 and the undersigned has reasonable cause to believe that the company and its Director(s) have violated the provisions of Section 117(1) of the Companies Act, 2013 as noticed from MGT-7/Annual Return available under the MCA21 portal. In view the facts narrated above, the company and its directors /officers, in default are liable for penalty as per Section 117(2) of the Companies Act.
9. 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.
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 it is observed from the Balance Sheet/financial statement as at 31.03.2022 that the paid-up capital of the company is Rs. 7,99,72,910/- and Turnover is Rs. 18,69,95,245/-. Hence, as per the Ministry’s Notification No. G.S.R. 700(E) dated 15.09.2022, in light of Companies (Specification of definition details) Amendment Rules, 2022 with respect to the provisions of Section 2(85) of the Companies Act, 2013, 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. Having considered the facts and circumstances of the case and submissions made by the Presenting Officer and oral submission made by Ld. PCS and after taking into accounts the factors above, I hereby imposed following penalty on company and its directors as prescribed under Section 117(2) of the Companies Act, 2013 for violation of section 117(1) of the Companies Act, 2013, I am of the opinion that penalty is commensurate with the aforesaid failure committed by the Noticees:
Penalty on company and Officers in default for the aforesaid default are as under:
(Default calculated 200 days w.e.f. 28.04.2022 to 13.11.2022)
2. 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, 20119 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.
3. 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) Rubs, 2014 as amended by Companies (Adjudication of Penalties) Amendment Rules, 2019].
4. 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
No. ROC-GJ/ADJ-Order/Sec. 454/ EASY PAY/2022-23/ Dated:
