Violation of Board meeting provisions- MCA imposes penalty

The Ministry of Corporate Affairs (MCA) in India has taken a stringent stance against companies failing to comply with the regulations set forth in the Companies Act, 2013. In a recent case involving Pantheryx (India) Private Limited, the MCA imposed penalties for violations related to board meetings.

Detailed Analysis:

1. Appointment of Adjudicating Officer:The MCA appointed the Registrar of Companies for the NCT of Delhi & Haryana as the Adjudicating Officer, empowered to adjudicate penalties under the Companies Act, 2013. This appointment was made in accordance with Section 454(1) of the Act and the Companies (Adjudication of Penalties) Rules, 2014.
2. Company Overview:Pantheryx (India) Private Limited, a company incorporated under the Companies Act, 1956, was the subject of the penalty. The company’s registered office was located in Gurgaon, Haryana. Key financial details for the fiscal year 2021-22 were provided, including paid-up capital, revenue from operations, and more.
3. Facts about the Case:The case revolved around non-compliance with Section 173 of the Companies Act. The company admitted to not holding board meetings as required, with key directors resigning, causing a delay in convening necessary meetings. Due to the global COVID-19 restrictions, the company faced challenges in appointing a foreign director, resulting in delays in board meetings. The company acknowledged its fault through a suo-moto application.
4. Factors Considered for Adjudication of Penalties:
   • The company held only two board meetings in 2020, with a significant gap between them.
   • The company failed to meet the minimum requirement of holding four board meetings in a calendar year.
   • Consequently, the company violated Section 173(1) of the Companies Act.
5. Relevant Provisions of the Act:Section 173 (as of the date of the violation) stipulates the requirement for companies to hold a specific number of board meetings within certain intervals. Section 450 outlines penalties for contraventions of provisions under the Act.
6. Adjudication of Penalty:
   • The subject company did not qualify as a small company, and therefore, the benefit of Section 446B did not apply.
   • The company’s request for a remission in the penalty was not considered, as a fixed penalty was mandated by the law.
   • After a thorough review and hearing, the Adjudicating Officer imposed penalties on the company and the officer in default for violating Section 173(1) of the Act.
7. Order:
   • The parties involved are directed to pay the specified penalty amounts within 90 days from the receipt of the order.
   • Payments should be made through the MCA’s official website.
   • Parties can file appeals against the order with the Regional Director within 60 days.
   • Non-compliance with the order may result in further action.

Conclusion:

The MCA’s action against Pantheryx (India) Private Limited serves as a reminder to companies to adhere to the provisions of the Companies Act, particularly in relation to board meetings. Non-compliance can lead to substantial penalties, emphasizing the importance of timely and effective corporate governance.

This case demonstrates the MCA’s commitment to upholding corporate regulations and ensuring that companies operate within the legal framework set out by the Companies Act, 2013. It also underscores the need for companies to adapt to changing circumstances, such as the challenges posed by the global pandemic, while maintaining compliance with statutory requirements.

GOVERNMENT OF INDIA
MINISTRY OF CORPORATE AFFAIRS,
OFFICE OF REGISTRAR OF COMPANIES,
NCT OF DELHI & HARYANA
4^TH FLOOR, IFCI TOWER, 61, NEHRU PLACE,
NEW DELHI -110019

ORDER OF PENALTY UNDER SECTION 173 OF THE COMPANIES ACT, 2013
IN THE MATTER OF PANTHERYX (INDIA) PRIVATE LIMITED (CIN: U24233HR2007PTC037028)

1. Appointment of Adjudicating Officer: –

Ministry of Corporate Affairs vide its Gazette Notification No. A-42011/112/2014-Ad.II, dated 24.03.2015 appointed Registrar of Companies, NCT of Delhi & Haryana as Adjudicating Officer in exercise of the powers conferred by section 454(1) of the Companies Act, 2013 (hereinafter known as Act) r/w Companies (Adjudication of Penalties) Rules, 2014 for adjudging penalties under the provisions of this Act.

2. Company: –

Whereas the company viz. PANTHERYX (INDIA) PRIVATE LIMITED (herein after known as ‘company’) incorporated under the Companies Act, 1956 having its registered office as per MCA21 Registry at address Res Cowork15, 10th Floor, Tower-B, Unitech Cyber Park, Sector – 39, Gurgaon, Gurgaon, Haryana, 122003. The financial & other details of the subject company for immediately preceding F.Y 2021-22. as available on MCA-21 portal is stated as under:

S. No.	Particulars	Details
1.	Paid up capital (Rs. in hundreds)	1,60,838
2.	a. Revenue from operation (Rs. in hundreds)	56,101
	b. Other Income (Rs. in hundreds)	77,795
	c. Profit for the Period (Rs. in hundreds)	55,386
3.	Holding Company	YES
4.	Subsidiary Company	NO
5.	Whether company registered under Section 8 of the Act?	NO
6.	Whether company registered under any other special Act?	NO

3. Facts about the Case: –

i. This office is in receipt of application on 08.05.2023 (GNL 1 SRN F61221966) wherein the company has admitted non-compliance of Section 173 of the Act and it is stated that in the financial year ended 31st March, 2019, Mr. Scott An Hyman, Mr. Mark Anthony Braman and Mr. Anurag Misra were the Directors of the Company. A board meeting was held on 27.01.2020, meanwhile directors of the company Mr. Mark Anthony Braman and Mr. Scott Ari Hyman resigned from the Board of the Company w.e.f. 07.01.2020 and 10.02.2020 respectively. Therefore, company was not able to convene its next Board which was due on 26.07.2020. In view of General Circular no 11/2020 dated 24.03.2020, the requirement of holding meetings of the Board of the companies within the intervals provided in section 173(1) of the Act (120 days) stood extended by a period of 60 days till next two quarters i.e. till 30.09.2020. In order to increase the number of Directors for constituting the quorum for a meeting of the Board, Mr. Wesley Amberg Parris was appointed as an Additional Director on the Board of the Company w.e.f. 11.12.2020 and company conducted its Board meeting on 14.12.2020.

ii. Accordingly, an SCN was issued on 28.08.2023 in response to which company submitted a reply on 06.09.2023. In view of submissions made in reply, a hearing in the matter was scheduled for oral submissions on 25.09.2023.

iii. Sh. Vishal Yadav (Advocate) appeared for hearing and reiterated the written submissions.

It is also noted that the non-compliance on the part of the company is not only limited to the gap between two successive board meetings but it also extends to not holding the minimum numbers of board meetings in a year.

The authorized representative of the company has explained that the default is intrinsically linked to delay in appointment of the second director. He has stated that in this case, the company had intended to appoint a foreign director but due to COVID restrictions prevalent across the world, necessary documentation could not be prepared on time, which has led to this delay. The defaults relating to holding of board meeting are of incidental nature.

The authorized representative finally prayed for a lenient view in this matter considering the fact that they have admitted the default through a suo-moto application.

4. Factors considered for adjudication of penalties: –

i. It is observed that in the calendar year 2020, the subject company could hold two board meetings on 27.01.2020 and 14.12.2020. The gap between two board meeting is of 321 days which is in excess of 180 days relaxation provided vide General Circular no 11/2020 dated 24.03.2020. Accordingly, there is default of 141 days.

ii. It is also noted that the company failed to hold the minimum numbers i.e 4 (four) board meetings in a calendar year.

iii. In view of above, company failed to comply with the provisions of Section 173(1) of the Act.

5. The relevant provision of the Act are as under:

Section 173 as on date of default

(1) “Every company shall hold the first meeting of the Board of Directors within thirty days of the date of its incorporation and thereafter hold a minimum number of four meetings of its Board of Directors every year in such a manner that not more than one hundred and twenty days shall intervene between two consecutive meetings of the Board:

The relevant provision of 450 sections as on date of default are as under:

“If a company or any officer of a company or any other person contravenes any of the provisions of this Act or the rules made thereunder, or any condition, limitation or restriction subject to which any approval, sanction, consent, confirmation, recognition, direction or exemption in relation to any matter has been accorded, given or granted, and for which no penalty or punishment is provided elsewhere in this Act, the company and every officer of the company who is in default or such other person shall be liable to a penalty of ten thousand rupees, and in case of continuing contravention, with a further penalty of one thousand rupees for each day after the first during which the contravention continues, subject to a maximum of two lakh rupees in case of a company and fifty thousand rupees in case of an officer who is in default or any other person.”

6. Adjudication of penalty: –

i. The subject company does not get covered under the purview of small company as defined u/s 2(85) of the Act. Hence, the benefit of section 446B would not be applicable on the company.

ii. The submission of the company regarding granting any remission in the penalty cannot be considered as the law provides for a fixed penalty in this case. Further, in the instant case it is noted that the period of default in holding the board meeting exceeds the relaxation granted by the MCA’s General Circular no 11/2020 dated 24.03.2020 and minimum number of board meetings were not held during the calendar year.

iii. Now in exercise of the powers conferred on me vide Notification dated 24th March, 2015 and having considered the reply submitted by the noticee (s) in response to the notice issued on 06.09.2023 and hearing held in the matter on 25.09.2023, I do hereby impose the penalty on the company and its officer in default for violation of Section 173(1) of the Act r/w section 450 of the Companies Act, 2013 which are as follows:-

TABLE-I

Violation	Penalty imposed on company/ Officers	Penalty imposed u/s 450 of the Act, 2013 (in Rs.)
A	B	C
Under section 173 of the Act for not holding minimum of Board Meetings in a year i.e 2020	PANTHERYX (INDIA) PRIVATE LIMITED (company)	10,000
	ANURAG MISRA (director)	10,000

TABLE-II

Violation	Penalty imposed on company/ Officers	No. of days of default	Calculation for penalty amount (in Rs.)	Penalty imposed u/s 450 of the Act, 2013 (in Rs.)
A	B	C	D	E
Under section 173 of the Act by conducting its board meeting with the gap of 141 days	PANTHERYX (INDIA) PRIVATE LIMITED(company)	141	10,000+141×1000 =1,51,000 (subject to maximum amount of Rs. 2,00,000)	1,51,000
	ANURAG MISRA (director)	141	10,000+141×1000 =1,51,000 (subject to maximum amount of Rs. 50,000)	50,000

7. Order:

a. Names of parties as mentioned in the above tables are hereby directed to pay the penalty amount as per the column no. ‘C’ and column no. `E’ of Table I and Table II respectively. In case of parties other than company, such amount is required to be paid out of their own funds.

b. The said amount of penalty shall be paid through online by using the website mca.gov.in (Misc. head) in favor of “Pay & Accounts Officer, Ministry of Corporate Affairs, New Delhi, within 90 days of receipt of this order, and intimate this office with proof of penalty paid.

c. Appeal against this order may be filed with the Regional Director (NR), Ministry of Corporate Affairs, B-2 Wing, 2nd Floor, Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi-110003 within a period of sixty days from the date of receipt of this order, in Form ADJ [available on Ministry website mca.gov.in] setting forth the grounds of appeal and shall be accompanied by a certified copy of the order. [Section 454(5) & 454(6) of the Act read with Companies (Adjudicating of Penalties) Rules, 2014].

d. Your attention is also invited to section 454(8) of the Act in the event of non­compliance of this order.

(Pranay Chaturvedi, ICLS)
(Adjudicating Officer)
Registrar of Companies
NCT of Delhi & Haryana

No. ROC/D/Adj/Order/Section 173/Pantheryx/ 3923-3925

Date: 17/10/2023