In a recent order dated 26th June 2024, the Registrar of Companies, Madhya Pradesh, has penalized Aries Hotels Private Limited and its directors for violations related to significant beneficial ownership rules under Section 90 of the Companies Act, 2013. The order reveals that Mr. Raoof Abdul Razak Dhanani, a director of Aries Hotels Private Limited and managing director of Sayaji Hotels Limited, holds significant control over both companies and the Haji Dawood Abdul Shakur Trust. Despite requests for disclosure of beneficial ownership details, the company failed to adequately comply, leading to penalties under Sections 90(10), 90(11), and 450 of the Act.
The violations spanned from 21st December 2020 to 19th February 2024, with penalties imposed on Mr. Raoof Abdul Razak Dhanani and other directors totaling and Aries Hotels Private Limited for non-compliance.
| Violation Section and Penal Provision | Period of Default (in days) | Penalty Imposed On | Calculation of Penalty Amount (in Rs.) | Penalty Imposed as per Section 90(10)/90(11)/450 (in Rs.) |
| Section 90(1) of the Act, penal provision 90(10) of the Act | 21.12.2020 to 19.02.2024 (1155 days) | Mr. Raoof Abdul Razak Dhanani (Significant Beneficial Owner) | ₹50,000 + 1155 x ₹1000 = ₹11,55,000 (maximum ₹2,00,000) | ₹2,00,000 |
| Section 90(4A) of the Act, penal provision 90(11) of the Act | 21.12.2020 to 19.02.2024 (1155 days) | ARIES HOTELS PRIVATE LIMITED (Company) | ₹1,00,000 + 1155 x ₹500 = ₹5,77,500 (maximum ₹5,00,000) | ₹5,00,000 |
| Mr. THOTTAPPULL Y NARAYANAN UNNI (Director) | ₹25,000 + 1155 x ₹200 = ₹2,31,000 (maximum ₹1,00,000) | ₹1,00,000 | ||
| Mr. RAOOF RAZAK DHANANI (Director) | ₹25,000 + 1155 x ₹200 = ₹2,31,000 (maximum ₹1,00,000) | ₹1,00,000 | ||
| Mrs. SUCHITRA DHANANI (Director) | ₹25,000 + 1155 x ₹200 = ₹2,31,000 (maximum ₹1,00,000) | ₹1,00,000 | ||
| Section 90(5) of the Act, penal provision Section 450 of the Act | 21.12.2020 to 19.02.2024 (1155 days) | ARIES HOTELS PRIVATE LIMITED (Company) | ₹10,000 + 1155 x ₹1000 = ₹11,65,000 (maximum ₹2,00,000) | ₹2,00,000 |
| Mr. THOTTAPPULL Y NARAYANAN UNNI (Director) | ₹10,000 + 1155 x ₹1000 = ₹11,65,000 (maximum ₹50,000) | ₹50,000 | ||
| Mr. RAOOF RAZAK DHANANI (Director) | ₹10,000 + 1155 x ₹1000 = ₹11,65,000 (maximum ₹50,000) | ₹50,000 | ||
| Mrs. SUCHITRA DHANANI (Director) | ₹10,000 + 1155 x ₹1000 = ₹11,65,000 (maximum ₹50,000) | ₹50,000 |
The order directs the company and its officers to pay these penalties within 90 days through the Ministry of Corporate Affairs portal. Failure to comply may result in further fines and potential imprisonment for the officers involved.
Furthermore, the order mandates the filing of additional forms (MGT-4, MGT-5, and MGT-6) in compliance with Section 89 of the Companies Act, 2013, within a specified timeframe. Failure to adhere to these directives could initiate adjudication proceedings under Section 89. The order also allows for an appeal within 60 days to the Regional Director (NWR), Ministry of Corporate Affairs, Ahmedabad, against the imposed penalties.
GOVERNMENT OF INDIA
MINISTRY OF CORPORATE AFFAIRS
Office of The Registrar of Companies, Madhya Pradesh
Sanjay Complex, ‘A’ Block, 3rd Floor,
Jayendraganj, Gwalior-4744009
E. mail: roc.gwalior@mca.gov.in
Order No. ROC-G/Adj-Penal/Order/S. 90/2024/550 Dated: 26 JUN 2024
To,
1. M/S ARIES HOTELS PRIVATE LIMITED,
2. Mr. THOTTAPPULLY NARAYANAN UNNI, DIRECTOR,
3. Mr. RAOOF RAZAK DHANANI, DIRECTOR,
4. Mr. SUCHITRA DHANANI, DIRECTOR,
5. The Regional Director (NWR)
6. E-Gov Cell, MCA, for uploading the documents.
Sub: Order under section 454 for violation of Section 90 of the Companies Act, 2013 read with Companies (Adjudication of Penalties) Rules, 2014.
Sir,
Please find enclosed herewith copy of order dated 26.06.2024 passed in the matter of M/s ARIES HOTELS PRIVATE LIMITED for necessary compliance.
Yours’s faithfully,
Encl: As above.
(Mukesh Kumar Soni)
Registrar of Companies,
Madhya Pradesh, Gwalior.
GOVERNMENT OF INDIA
MINISTRY OF CORPORATE AFFAIRS
Office of The Registrar of Companies, Madhya Pradesh
Sanjay Complex, ‘A’ Block, 3rd Floor,
Jayendraganj, Gwalior-4744009
E. mail: roc.gwalior@mca.gov.in
ORDER FOR PENALTY FOR DEFAULT OF SECTION 90 OF THE COMPANIES ACT, 2013 IN THE MATTER OF ARIES HOTELS PRIVATE LIMITED (U74300MP1996PTC062232)
1. Appointment of Adjudicating officer: –
The Ministry of Corporate Affairs vide its Gazette Notification No. A-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.
2. Company: –
Whereas Company, ARIES HOTELS PRIVATE LIMITED [herein after known as Company] is a registered company with this office under the provisions of Companies Act, 1956/ 2013 having its registered office situated at Plot no. 10-C/C.A, Scheme no.94, Sector C, Indore, Indore, Madhya Pradesh, 452010, India, as per the MCA website. The CIN of the Company is U74300MP1996PTC062232. The Financial and other details of the subject company for the year ended 31.03.2023 as available on MCA21 portal is stated as under:
| S.No. | Particulars | Details |
| 1 | Paid up capital as per latest audited Financial, Statement | Rs. 9,96,35,000 |
| 2 | Turnover as per latest audited Financial Statement | NIL |
| 3 | Holding Company | Yes, (Subsidiary Company: MALWA HOSPITALITY PRIVATE LIMITED, U55209MP2008PTCO20502) |
| 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 |
| 7 | Whether company is a small company? | No |
| 8 | Whether Section 446B is applicable to the company (lesser penalties for certain companies)? | No |
3. Shareholding pattern of the company: –
| ARIES HOTELS PRIVATE LIMITED | ||||
| Shareholding Details for F.Y 2022-23 | ||||
| Si. No. | Name of shareholder | Number of shares | Category | Percentage |
| 1 | Kirit R. Mehta | 10 | Public | 0.0001% |
| 2 | Sayaji Hotels Limited | 1 | Promoter | 0.00001% |
| 3 | Saba Dhanani | 8,30,288 | Promoter | 8.33% |
| 4 | Sumera Dhanani | 8,30,288 | Promoter | 8.33% |
| 5 | Sadiya Dhanani | 8,30,288 | Promoter | 8.33% |
| 6 | Kayum Razak Dhanani | 24,90,865 | Promoter | 24.99% |
| 7 | Haji Dawood Abdul Shakur Trust | 14,00,000 | Promoter | 14.05% |
| 8 | Maqsood Merchant | 8,00,000 | Promoter | 8.03% |
| 9 | Gurjeet Singh Chhabra | 10 | Public | 0.0001% |
| 10 | Abdul Gani Sarfaraz | 21,45,480 | Public (Foreign Shareholder) |
21.53% |
| 11 | Suchitra Dhanani | 3,76,770 | Promoter | 3.78% |
| 12 | Zoya Dhanani | 1,29,750 | Promoter | 1.30% |
| 13 | Sanya Dhanani | 1,29,750 | Promoter | 1.30% |
| Total | 99,63,500 | 100% | ||
[Source: MGT-7/ Annual Reports of ARIES HOTELS PRIVATE LIMITED for the F.Y. 2022-23]
| ARIES HOTELS PRIVATE LIMITED | ||||
| Shareholding Details for F.Y 2018-19 | ||||
| Si. No. |
Name of shareholder | Number of shares | Category | Percentage |
| 1 | Kirit R. Mehta | 10 | Public | 0.0001% |
| 2 | Sayaji Hotels Limited | 52,18,000 | Promoter | 52.37% |
| 3 | Haji Dawood Abdul Shakur Trust | 14,00,000 | Promoter | 14.05% |
| 4 | Maqsood Merchant | 8,00,000 | Promoter | 8.02% |
| 5 | Gurjeet Singh Chhabra | 10 | Public | 0.0001% |
| 6 | Abdul Gani Sarfaraz | 21,45,480 | Public (Foreign Shareholder) |
21.53% |
| 7 | Suchitra Dhanani | 1,40,500 | Promoter | 1.41% |
| 8 | Zoya Dhanani | 1,29,750 | Promoter | 1.30% |
| 9 | Sanya Dhanani | 1,29,750 | Promoter | 1.30% |
| Total | 99,63,500 | 100% | ||
[Source: MGT-7/ Annual Reports of ARIES HOTELS PRIVATE LIMITED for the F.Y. 2018-19]
4. Applicable provisions of Companies Act, 2013 and rules thereof: –
Section 90 of the Companies Act, 2013 reads as under:
(1) Every individual, who acting alone or together, or through one or more persons or trust, including a trust and persons resident outside India, holds beneficial interests, of not less than twenty-five per cent. or such other percentage as may be prescribed, in shares of a company or the right to exercise, or the actual exercising of significant influence or control as defined in clause (27) of section 2, over the company (herein referred to as “significant beneficial owner’), shall make a declaration to the company, specifying the nature of his interest and other particulars, in such manner and within such period of acquisition of the beneficial interest or rights and any change thereof, as may be prescribed..
Provided that the Central Government may prescribe a class or classes of persons who shall not be required to make declaration under this sub-section.
(2) Every company shall maintain a register of the interest declared by individuals under sub-section (1) and changes therein which shall include the name of individual, his date of birth, address, details of ownership in the company and such other details as may be prescribed.
(3) The register maintained under sub-section (2) shall be open to inspection by any member of the company on payment of such fees as may be prescribed.
(4) Every company shall file a return of significant beneficial owners of the company and changes therein with the Registrar containing names, addresses and other details as may be prescribed within such time, in such form and manner as may be prescribed.
(4A) Every company shall take necessary steps to identify an individual who is a significant beneficial owner in relation to the company and require him to comply with the provisions of this section.
(5) A company shall give notice, in the prescribed manner, to any person (whether or not a member of the company) whom the company knows or has reasonable cause to believe—
(a) to be a significant beneficial owner of the company,.
(b) to be having knowledge of the identity of a significant beneficial owner or another person likely to have such knowledge; or
(c) to have been a significant beneficial owner of the company at any time during the three years immediately preceding the date on which the notice is issued, and who is not registered as a significant beneficial owner with the company as required under this section.
(6) The information required by the notice under sub-section (5) shall be given by the concerned person within a period not exceeding thirty days of the date of the notice.
(7) The company shall,—
(a) where that person fails to give the company the information required by, the notice within the time specified therein; or
(b) where the information given is not satisfactory, apply to the Tribunal within a period of fifteen days of the expiry of the period specified in the notice, for an order directing that the shares in question be subject to restrictions with regard to transfer of interest suspension of all rights attached to the shares and such other matters as may be prescribed .0
8. On any application made under sub-section (7), the Tribunal may, after giving an opportunity of being heard to the parties concerned, make such order restricting the rights attached with the shares within a period of sixty days of receipt of application or such other period as may be prescribed
9. The company or the person aggrieved by the order of the Tribunal may make an application to the Tribunal for relaxation or lifting of the restrictions placed under sub-section (8), within a period of one year from the date of such order:
Provided that if no such application has been filed within a period of one year from the date of the order under sub-section (8), such shares shall be transferred, without any restrictions, to the authority constituted under sub-section (5) of section 125, in such manner as may be prescribed.
(9A) The Central Government may make rules for the purposes of this section.
(10) If any person fails to make a declaration as required under sub-section (1), he shall be liable to a penalty of fifty thousand rupees and in case of continuing failure, with a further penalty of one thousand rupees for each day after the first during which such failure continues, subject to a maximum of two lakh rupees.
(11) If a company, required to maintain register under sub-section (2)and file the information under sub-section (4) or required to take necessary steps under subsection (4A), fails to do so or denies inspection as provided therein, the company shall be liable to a penalty of one lakh rupees and in case of continuing failure, with a further penalty of five hundred rupees for each day, after the first during which such failure continues, subject to a maximum of five lakh rupees and every officer of the company who is in default shall be liable to a penalty of twenty-five thousand rupees and in case of continuing failure, with a further penalty of two hundred rupees for each day, after the first during which such failure continues, subject to a maximum of one lakh rupees.
(12) If any person wilfully furnishes any false or incorrect information or suppresses any material information of which he is aware in the declaration made under this section he shall be liable to action under section 447.
clause (27) of section 2 of the Companies Act, 2013 define control.
“control” shall include the right to appoint majority of the director or to control the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholders agreements or voting agreements or in any other manner.
Rule 2A (1) of the Companies Significant Beneficial Owners) Rules 2018:
Every reporting company shall take necessary steps to find out if there is any individual who is a significant beneficial owner, as defined in clause (h) of rule 2, in relation to that reporting company, and if so, identify him him and cause such individual to make a declaration in Form No. BEN-I.
Rule 4 of the Companies Significant Beneficial Owners) Rules 2018:
Upon receipt of declaration under rule 3, the reporting company shall file a return in [2Form No. BEN-2] with the Registrar in respect of such declaration, within a period of thirty days from the date of receipt of such declaration by it, along with the fees as prescribed in Companies (Registration o tees and fees) Rules, 2014.
5. Facts about the Case: –
It is seen that Sayaji Hotels Limited is a member/shareholder of the company holding 10% or more shares in the company as per MGT-7 filed for the Financial Year 201819 and falls in the description provided in clause (i) of Explanation III to rule 2(1)(h). It is seen that Haji Dawood Abdul Shakur Trust is a member/shareholder of the company holding 10% or more shares in the company as per MGT-7 filed for the Financial Year 2018-19 to 2022-23 and falls in the description provided in clause (iv) of Explanation III to rule 2(1)(h).
The Shareholdings patterns of the above Body Corporate for the F.Y 2018-19 to 2022-23 are as under: –
Financial Year |
Sayaji Hotels Limited |
Haji Dawood Abdul Shakur Trust |
||||
No of Shares Held by Sayaji Hotels Limited |
Total Shares of Company |
(Percentage of Shareholding) |
No of Shares. Held by Haji Dawood Abdul Shakur Trust |
Total Shares of Company |
(Percentage of Shareholding) |
|
F.Y 2018-19 |
52,18,000 |
99,63,500 |
52.37% |
14,00,000 |
99,63,500 |
14.05% |
F.Y 2019-20 |
1 |
99,63,500 |
0.00001% |
14,00,000 |
99,63,500 |
14.05% |
FY 2020-21 |
1 |
99,63,500 |
0.00001% |
14,00,000 |
99,63,500 |
14.05% |
F.Y 2021-22 |
1 |
99,63,500 |
0.00001% |
14,00,000 |
99,63,500 |
14.05% |
F.Y 2022-23 |
1 |
99,63,500 |
0.00001% |
14,00,000 |
99,63,500 |
14.05% |
The office of the undersigned has issued notice calling for information under section 206(1) of the Companies Act, 2013 vide letter ROC-G/U/s 206(1)/BEN/ 01/2024/3698 to 3701 dated 19.02.2024 regarding Non filing of e-form BEN-2 on MCA-21 portal as required u/s 90 of the Companies Act, 2013. The company and its officers/ Directors have submitted their reply dated 12.03.2024, which is received on 27.03.2024.
On perusal of Annual Return/ Balance Sheet for the financial year 2018-19 to 2022-23 of the company available with this office, it has been observed that Sayaji Hotels Limited and Haji Dawood Abdul Shakur Trust are member/shareholder of the company holding 52.37% and 14.05% holding in the company ARIES HOTELS PRIVATE LIMITED and falls in the description provided in clause (iii) of Explanation III to rule 2(1)(h). As per the thoroughly verification of record available on MCA21 portal, it has evident that the main shareholders in the company are body corporates i.e. Sayaji Hotels Limited, holds 52.37% and Haji Dawood Abdul Shakur Trust holds 14.05% shareholding in M/s. ARIES HOTELS PRIVATE LIMITED and provisions of Section 90 of the Companies Act, 2013 is rapt on the company.
6. Notice for adjudication and hearings: –
Accordingly, the Office of the Registrar of Companies, M.P vide Adjudication notice No. ROC-G/U/s 454/S. 90/BEN/AHPL/2024/175 to 178 dated 01.05.2024 has initiated adjudication proceedings against the captioned company and its Directors and an opportunity of being heard was granted to them on 09.05.2024 at 11.30 A.M. at the 0/o Registrar of the Companies, Sanjay Complex, ‘A’ Block, 3rd Floor, Jayendraganj, Gwalior — 474 009. On the scheduled date of hearing i.e. on 09.05.2024, the Company Secretary Mr. Ankur Bindal, Authorised Representative of the Company appeared before the Adjudicating Officer. CS Ankur Bindal submitted as under: –
“It is to inform that every trust is covered by the purview of section 90, However the definition and features of specific trust like distribution of income pattern, shareholding and beneficial interest are defined in the subject trust. Therefore, the trust is specific trust.
All the trustees are relatives to each other. Mr. Abdul Razak Dhanani, Mrs. Rabin Abdul Razak and Shri Yusuf Abdul Razak are the key administrators of the Trust. There are 07 beneficiaries in the trust who are the relatives to the trustees.
As per the SBO rules and section 90 states that if any individual who directly or through any indirect holdings holds more than 10% in the reporting entity, then it would be categorized as SBO. Following the facts of the cases and analyzing the shareholding patter of Sayaji Hotels Ltd for the F. Y 2018-19, it appears that no individual holds majority stake i.e., more than 50% in Sayaji Hotels Limited. Therefore, any shareholder of the Sayaji Hotel Limited is not treated as SBO.
Internally we have analysed the shareholding pattern of the company and company has not issued any notice to Sayaji Hotels Ltd and Haji Dawood Abdul Shakur Trust in compliance of section 90(5) of the Companies Act, 2013.
Some of the directors’ persons are common. in the Sayaji Hotels Ltd, Aries Hotels Private Limited and Haji Dawood Abdul Shakur Trust.
in view of the above the SBO rules are not applicable to the company.
Further, the representative of company CS Ankur Bindal has requested to provide 15 days’ time for submitting further necessary documents as asked by this office regarding trust and the company. The Aries Hotels Private Limited and Haji Dawood Abdul Shakur Trust vide letter dated 13.05.2024 have submitted their reply which is received on 20.05.2024.
7. Reply/Submissions of the Company: –
That in response of the adjudication notice dated 12.04.2024, the Company has submitted its reply vide letter dated 24.04.2024 and stated that: –
I. The contention of your goodself is that Aries Hotels Private Limited (hereinafter referred to as ‘Company), specifically through its shareholders, Sayaji Hotels Limited and Haji Dawood Abdul Shakoor Trust (hereinafter referred to as Trust), purportedly stands in contravention of the statutory provisions of Section 90 of the Companies Act, 2013, alongside the corresponding regulations under the Companies (Significant Beneficial Owners) Rules, 2018.
II. Your good selves’ may appreciate that we have conducted a thorough internal review, given the kinship shared by all trustees and beneficiaries of the Haji Dawood Abdul Shakoor Trust with a Director of our esteemed Company, as well as the corporate connection with Sayaji Hotels Limited. The review aimed at gathering data and conducting comprehensive calculation to identify any Significant Beneficial Owner as per the provision of Companies Act. Upon diligent assessment, it has been ascertained that none of the individual shareholdings surpass the threshold delineated by Rule 2(h) of the Companies (Significant Beneficial Owners) Rules, 2018.
III. It is imperative to bring to your goodselves’ attention that ‘Haji Dawood Abdul Shakoor Trust’ functions as a Specific Trust as observed from the bare perusal of the Trust Deed dated 29th November 1980 and the cited case laws in our previous reply dated 12th March, 2024 which clearly throws the light upon proving the trust as specific one and for the reasons mentioned below:
a) The Trust expressly identifies specific individuals as beneficiaries, each with a designated proportion in which the net income shall be distributed, indicating a clear intention to benefit these individuals.
b) The Trust provides for a specific percentage for each beneficiary, thereby establishing a predetermined allocation of income among them.
c) The Trust is explicitly described as irrevocable, implying that its terms and beneficiaries are fixed and immutable, precluding any discretionary changes by the trustee.
d) There is an absence of language granting discretionary powers to the trustee for the distribution of income or assets among a broader class of beneficiaries. Instead, the distribution is strictly defined based on the proportions specified for each named beneficiary.
IV. Further, in the said Trust Deed, the apportionment of shares and the disbursement of earnings are meticulously specYled, thereby precluding any ambiguity. Therefore, in light of the clause (iv) of the Explanation. III to the Rule 2(1)(h) of the Companies (Significant Beneficial Owners) Rules, 2018 it is important to evaluate and assess the interest of the beneficiaries as an `Individual’ and whether they hold substantial interest in the company.
V. Your goodselves’ may appreciate that we have diligently undertaken the requisite computations to ascertain the shareholding patterns and the potential presence of Sign cant Beneficial Owners in the ‘Hall Abdul Shakoor Trust’.
VI. The Trust is administered by three trustees: Abdul Razak Dawoodbhai, Rabia Abdul Razak, and Yusuf Abdul Razak. The trust designates seven beneficiaries, each with a predetermined share of the net income to be distributed as fellows:
a) Kumari Rafiqunnisha Abdul Razak – NIL,
b) Shri Raoof Abdul Razak – NIL
c) Kumari Nasimbanu Abdul Razak – 20%
d) Shri Sajid Abdul Razak – 20%
e) Kumari Saininzbanu Abdui Razak – 20%
f) KayuntAbdul Razak – 2 0 %
g) Habibunissa Abdul Razak – 20%
VII. We have observed that, though the Trust holds a 14% stake in Aries Hotel Management Limited, however, despite the significant shareholding held by the Trust, the manner in which the Trust operates; the ultimate beneficiaries receive only a proportionate share of the earnings. Accordingly, each beneficiary ends up with only a 2.81% indirect stake in the company. Please refer to the table below for the computation: –
| S. No. | Name of Beneficiary | % of Beneficial Interest in the Trust |
Direct Holding in Aries Hotels Private Limited | Total % of Beneficial Interest in Aries Hotels Private Limited | Whether the Individual is Significant Beneficial Owner |
| I | Kumari Rafiqunnisha Abdul Razak Dhanani | Nil | No | Nil | No |
| 2 | Raoof Abdul Razak Dhanani | Nil | No | 2.81% | No |
| 3 | Nasimbanu Abdul Razak Dhanani | 20% | No | 2.81% | No |
| 4 | Sajid Abdul Razak Dhanani | 20% | No | 2.81% | No |
| 5 | Shamim Banu Abdul Razak | 20% | No | 2.81% | No |
| 6 | Kayum Razak Dhanani | 20% | No | 2.81% | No |
| 7 | Ha.bubunissa. Abdul Razak | 20% | No | 2.81% | No |
VIII. This distribution pattern has significant implications in the context of determining Significant Beneficial Owners (SB0s) as per Section. 90 of the Companies Act, 2013. As per the statutory provisions, an individual is deemed to be a Significant Beneficial Owner if they hold beneficial interests of not less than 10% in shares of a company. However, in the case of the Haji Abdul Shakur Trust, none of the beneficiaries meet the criteria to be classified as Significant Beneficial Owners.
IX. In light of the aforesaid, it is crucial to note that while the Haft Abdul Shakur Trust holds a 14% stake in Aries Hotels Private Limited, the beneficiaries of the Trust don’t directly or indirectly enjoy significant ownership of these shares. Instead, their entitlement is determined by a predefined distribution pattern as provided in the said Trust Deed. The beneficiaries of the Haji Abdul Shakur Trust do not hold any substantial shareholding in Aries Hotels Private Limited but rather enjoy only a fractional portion thereof The beneficiaries’ interests are limited by the terms of the trust.
X. That, it is very clear that the ultimate object of the whole section 90 is to prevent benami holdings and to identi the person who is actually the ultimate individual of the company who beneficially owns the company directly or indirectly.
XI. It is essential to delve into the nature of the trust arrangement and its implications on the determination of beneficial ownership. Despite the Trust holding a notable percentage of shares in the company, the distribution pattern outlined in the Trust deed significantly impacts the actual ownership structure.
XII The Trust, acting as a *Member’, holds a substantial 14% share in the Company. However, when considering each beneficiary as an ‘Individual’, it becomes evident that they do not possess significant: ownership. Each beneficiary, regarded as an ‘Individual’ under the provisions, only enjoys a mere 2.81% of the net income received by the Trust.
XIII. This situation differs from scenarios where a single beneficiary might exclusively, benefit from the Trust’s assets. In our case, with a total of seven beneficiaries, it is imperative to assess their combined and ultimate indirect benefit from the company to effectively fulfill the objectives of the provision.
XIV. It is reiterated here that after careful examination, none of the beneficiaries meet the criteria to be classified as Significant Beneficial Owners, as defined by Section 90 of the Companies Act, 2013, therefore, as such, do not warrant imposition of penalties. Any punitive measures or regulatory actions against the company would be unwarranted and contrary to the legislative intent of the statute.
XV. Further, during the Financial Year 2018-19, Sayaji Hotels Limited was the member holding 52,18,000 Equity Shares which represented 52.37% of paid-up capital of the Company. As per our previous reply to the Show Cause Notice dated 14″ February, 20.24 and as per Rule 2(c) of Companies (Significant Beneficial Owners) Rules, 2018 Significant beneficial owner in relation to a reporting company means an individual, who acting alone or together, or through one or more person or trust, possesses one or more of the following rights or entitlements in such reporting company, namely:
1. holds indirectly, of together with any direct holdings, not less than ten percent, of the shares,.
2. holds indirectly, or together with any direct holdings, not less than ten percent, of the voting rights in the shares;
3. has right to receive or participate in not less than ten per cent, of the total distributable dividend, or any other distribution, in a financial year through indirect holdings alone, or together with any direct holdings;
4. has right to exercise or actually exercises, significant influence or control, in any manner other than through direct-holdings alone:
Since, as per the shareholding pattern of Sayaji Hotels Limited as submitted earlier, no member Indirectly and directly held more than 10% of the paid-up capital of the Company, the provisions of section 90 of the Companies Act, 2013 was not applicable.
Shareholding Pattern Public Shareholder] SAYAJI HOTELS LTD.
Statement showing shareholding pattern of the Promoter and Promoter Group, Quarter ending: Mar-19
Shareholding Pattern Public Shareholder, SAYAJI HOTELS LTD.
Statement showing shareholding pattern of the Public shareholder, Quarter ending: Mar-19
The list of shareholders reveals that Mr. Raoof Razak Dhanani holds 22.06% of shareholding in the company and jointly holds 60.51% of shareholding indicating in the company along with his family members this shows his significant beneficial ownership.
8. Findings under Section 90 of the Act: –
The submissions of the company have revealed that for the financial year 2018-19 to 202223 that the Sayaji Hotels Limited and Haji Dawood Abdul Shakur Trust are member/shareholder of the company holding 52.37% and 14.05% holding in the company ARIES HOTELS PRIVATE LIMITED, which jointly holds 66.42% shareholding of the company.
As per section 2(1)(h) of The Companies (Significant Beneficial Owners) Rules,2018 (h) “significant beneficial owner” in relation to a reporting company means an individual referred to in sub-section (I) of Section 90, who acting alone or together, or through one or more persons or trust, possesses one or more of the following rights or entitlements in such reporting company, namely:
The office vide mail dated 07.06.2024 and 12.06.2024 has requested the company share the family tree of the beneficiary, trustee of the trust and family tree of the majority shareholders of the Sayaji Hotel Limited and persons to whom the shares of sayaji hotels has been transferred. The company vide mail dated 11.06.2024 and 13.06.2024 has submitted it reply. As per the reply submitted by the company, following table described the family tree of the above persons.
After examination of the documents of the company, reply submitted by the company, it is evident that Mr. Raoof Razak Dhanani, Director of Aries Hotels Private Limited and Managing Director of Sayaji Hotels Limited is the Significant Beneficial Owner: –
| Name of Director and Shareholder | Relationship | Designation in the company | % of Shareholding and Tenure of directors/zip |
Remarks |
| Raoof Abdul Razak Dhanani | Self | DIRECTOR of subject company and Beneficiary of the Haji Dawood Abdul Shakur Trust. Managing Director of Sayaji Hotels Limited. | FROM 26.09.2018 TO TILL DATE | It is observed that Mr. Raoof Abdul Razak Dhanani jointly holds 70.41% shareholding in the company and also having significant control in the company. |
| Sadiya Dhanani | Daughter | Shareholder | 8.33% | |
| Sumera Dhanani | Daughter | Shareholder | 8.33% | |
| Saba Dhanani | Daughter | Shareholder | 8.33% | |
| Kayum Razak Dhanani | Brother | Shareholder and Beneficiary of the Haji Dawood Abdul Shakur Trust | 24.99% | |
| Suchitra Dhanani | Brother’s Wife |
Shareholder and Director of the company |
3.78% | |
| Zoya Dhanani | Brother’s Daughter | Shareholder | 1.30% | |
| Sanya Dhanani | Brother’s Daughter | Shareholder | 1.30% | |
| Haji Dawood Abdul Shakur Trust | Trust | Shareholder | 14.05% |
As Haji Dawood Abdul Shakur Trust is also the shareholder of the company and holds 14.05% shareholding in the company. Mr. Raoof Abdul Razak Dhanani are the beneficiary of the trust and his relatives are the trustee and beneficiary of the Trust. Thus, Mr. Raoof Abdul Razak Dhanani is having significant control in the Haji Dawood Abdul Shakur Trust and identified as Significant Beneficial Owner of the company namely Aries. Hotels Private Limited. Mr. Raoof Abdul Razak Dhanani is also the Managing Director of company namely SAYAJI HOTELS LIMITED since 05.11.2015 and individually holds 22.06% of shareholding (jointly holds 60.51%) in March 2019 of SAYAJI HOTELS LIMITED and individually holds 8.72% of shareholding (jointly holds 54.86%) in March 2024 of SAYAJI HOTELS LIMITED which was the shareholder of the subject company. The shares of SAYAJI HOTELS LIMITED transferred to his daughter namely Sadiya Dhanani, Sumera Dhanani and Saba Dhanani, his brother Kayum Razak Dhanani and his brother’s wife Suchitra Dhanani which amount to 52.36% of shares and 0.00001% shares remains with Sayaji Hotels Limited.
It is also evident from shareholding pattern as on 31.03.2023 of the subsidiary of Aries Hotel Private Limited namely MALWA HOSPITALITY PRIVA I_ L LIMITED having CIN U55209MP2008PTCO20502 that his family members are the shareholders of the subsidiary company and as a director of the company Mr. Raoof Razak Dhanani holds the key managerial position and control of the company. Shareholding pattern for the F.Y 2022-23 of subsidiary company namely MALWA HOSPITALITY PRIVATE LIMITED having CIN U55209MP2008PTCO20502 is as under: –
| S No. | Name of shareholder | No. of Shares | Face value of shares (INR) | Category |
| 1. | Late. Sajid Razak Dhanani | 1 | 10 | Promoter |
| 2. | Mrs. Suchaitra Dhanani | 1 | 10 | Promoter |
| 3. | Aeies Hotels Private Limited |
68,93,998 | 10 | Promoter |
| 4. | Sumera Dhanani | 5,50,000 | 10 | Promoter |
| 5. | Sadiya Rao of Dhanani | 20,50,000 | 10 | Promoter |
| 6. | Zuber Yusuf Dhanani | 8,25,000 | 10 | Promoter |
| 7. | Azhar Yusuf Dhanani | 8,25,000 | 10 | Promoter |
| 8. | Saba Rao of Dhanani | 5,55,000 | 10 | Promoter |
| 9. | Sanya Dhanani | 8,25,000 | 10 | Promoter |
| 10. | Zoya Dhanani | 8,25,000 | 10 | Promoter |
| Total | 1,33,44,000 |
Significant Control of Director Mr. Raoof Abdul Razak Dhanani: – Mr. Raoof Abdul Razak Dhanani holds significant control on the subject company through Sayaji Hotels Limited, Haji Dawood Abdul Shakur Trust and his family members. Year wise analysis is as under: –
| F. Y | Name of the entity | Stake in the Beneficiary entity | Total Shareholding/ Control of company | Stake in the Beneficiary entity | Designation in the Beneficiary entity |
| 2018-19 | Sayaji Hotels Limited | 52.37% shareholding | 66.42% | Individually holds 22.06% of shareholding (Jointly holds 60.51%) in March 2019 | Managing Director of Sayaji Hotels Limited since 05.11.2015. |
| Haji Dawood Abdul Shakur Trust | 14.05% Shareholding | Mr. Raoof Abdul Razak Dhanani are the beneficiary of the trust, and his relatives are the trustee and beneficiary of the Trust. | |||
| 2019-20 | Through Family members | 56.36% Shareholding | 70.41% | Mr. Raoof Abdul Razak Dhanani is the director of the subject company since 26.09.2018. | |
| Haji Dawood Abdul Shakur Trust | 14.05% Shareholding | Mr. Raoof Abdul Razak Dhanani are the beneficiary of the trust, and his relatives are the trustee and beneficiary of the Trust. | |||
| 2020-21 | Through Family members | 56.36% Shareholding | 70.41% | Mr. Raoof Abdul Razak Dhanani is the director of the subject company since 26.09.2018. | |
| Haji Dawood Abdul Shakur Trust | 14.05% Shareholding | Mr. Raoof Abdul Razak Dhanani are the beneficiary of the trust, and his relatives are the trustee and beneficiary of the Trust. | |||
| 2021-22 | Through Family members | 56.36% Shareholding | 70.41% | Mr. Raoof Abdul Razak Dhanani is the director of the subject company since 26.09.2018. | |
| Haji Dawood Abdul Shakur Trust | 14.05% Shareholding | Mr. Raoof Abdul Razak Dhanani are the beneficiary of the trust, and his relatives are the trustee and beneficiary of the Trust. | |||
| 2022-23 | Through Family members | 56.36% Shareholding | 70.41% | Mr. Raoof Abdul Razak Dhanani is the director of the subject company since 26.09.2018. |
|
| Haji Dawood Abdul Shakur Trust | 14.05% Shareholding | Mr. Raoof Abdul Razak Dhanani are the beneficiary of the trust, and his relatives are the trustee and beneficiary of the Trust. | |||
As per section 2(1)(h) of The companies (Significant Beneficial Owners) Rules,2018
(h) “significant beneficial owner” in relation to a reporting company means an individual referred to in sub-section (1) of Section 90, who acting alone or together, or through one or more persons or trust, possesses one or more of the following rights or entitlements in such reporting company, namely:
In view of the above it is evident that Mr. Raoof Abdul Razak Dhanani is the Significant Beneficial Owner of subject company namely Aries Hotel Private Limited. Hence, the submission of the company is found non-acceptable.
Further, it is observed that the registered owner being a Sayaji Hotels Limited and Haji. Dawood Abdul Shakur Trust is in fact the Beneficial Owner. Hence, the company is requested to comply the provision of section 89 as the registered owner is different from the beneficial owner. As it is observed that the above body corporate has holding a majority stake in them. Thus, section 89 of the Companies Act is applicable in company ARIES HOTELS PRIVATE LIMITED.
9. Order:
For the aforesaid reasons are the SBOs in relation to the subject company and are liable to a penalty under section 90(10) of the Act, due to their failure to report as per section 90(1). The subject company and its officers are liable for action under section 90 (11) of the Act for its failure to take necessary steps as per section 90(4A) to identify the SBO in relation to the company. Also, the company and its officers failed to even send a notice [which was mandatorily required to be sent] as per rule 2A (2) of the Companies (Significant Beneficial Owners) Rules, 2018 leading to a contravention of section 90(5) for which penalty has been provided under section 450. All the officers are liable for this violation due to the presumption of clear knowledge on part of each of such directors about the holding structure of the company. The period is being reckoned from 21.12.2020, the date of decriminalization of default onwards till the issuance of the SCN under section 90, which was issued on 19.02.2024.
| Table- I Calculation of penalty for violation of Section 90 | ||||
| Violation section
and penal |
Period of
default (in days) |
Penalty imposed on | Calculation of penalty amount (in Rs.) | Penalty imposed as per Section 90 (10)/ 90(11)/ 450 (in Rs.) |
| A | B | C | D | E |
| Section 90 (1) of the Act penal provision 90(10) of the Act. | 21.12.2020 to 19.02.2024 i.e. 1155 days | Mr. Raoof Abdul Razak Dhanani
(Significant Beneficial Owner) |
50000 + 1155 x 1000 [11,55,000] = 12,05,000 to maximum 2,00,000 | 2,00,000 |
–
| Table- II Calculation of penalty for violation of Section 90 | ||||
| Violation section and penal provision | Period of default (in days) | Penalty imposed on | Calculation of penalty amount (in Rs.) | Penalty imposed as per Section 90 (10)/ 90(11)/ 450 (in Rs.) |
| A | B | C | D | E |
| Section 90 (4A) of the Act, penal provision 90 (11) of the Act. | 21.12.2020 to 19.02.2024 i.e., 1155 days | ARIES HOTELS PRIVATE LIMITED (Company) | 1,00,000 + 1155 x 500 [5,77,500] = 6,77,500 Subject to maximum 5,00,000 | 5,00,000 |
| 21.12.2020 to 19.02.2024 i.e., 1155 days | Mr. THOTTAPPULL Y NARAYANAN UNNI (Director) | 25,000 + 1155 x 200 [2,31,000] =- 2,56,000 Subject to maximum 1,00,000 | 1,00,000 | |
| 21.12.2020 to 19.02.2024 i.e., 1155 days | Mr. RAOOF RAZAK DHANANI (Director) | 25,000 + 1155 x 200 [2,31,000] = 2,56,000 Subject to maximum 1,00,000 | 1,00,000 | |
| 21.12.2020 to 19.02.2024 i.e., 1155 days | Mrs. SUCHITRA DHANANI (Director) | 25,000 + 1155 x 200 [2,31,000] = 2,56,000 Subject to maximum 1,00,000 | 1,00,000 | |
–
| Table– III Calculation of penalty for violation of Section 90 | ||||
| Violation section and penal provision | Period of default (in days) | Penalty imposed on | Calculation of penalty amount (in Rs.) | Penalty imposed as per Section 90 (10)/ 90(11)/ 450 (in Rs.) |
| A | B | C | D | E |
| Section 90 (5) of the Act, penal provision Section 450 of the Act. |
21.12.2020 to 19.02.2024 i.e., 1155 days | ARIES HOTELS PRIVATE LIMITED (Company) | 10,000 + 1155 x 1000 [11,55,000] = 11,65,000 Subject to maximum 2,00,000 | 2,00,000 |
| 21.12.2020 to 19.02.2024 i.e., 1155 days | Mr. THOTTAPPULL Y NARAYANAN UNNI (Director) | 10,000 + 1155 x 1000 [11,55,000] = 11,65,000 Subject to maximum 50,000 | 50,000 | |
| 21.12.2020 to 19.02.2024 i.e., 1155 days | Mr. RAOOF RAZAK DHANANI (Director) |
10,000 + 1155 x 1000 [11,55,000] = 11,65,000 Subject to maximum 50,000 | 50,000 | |
| 21.12.2020 to 19.02.2024 i.e., 1155 days | Mrs. SUCHITRA DHANANI (Director) | 10,000 + 1155 x 1000 [11,55,000] = 11,65,000 Subject to maximum 50,000 | 50,000 | |
The company and its officers who is in default are hereby directed to pay the penalty amount as per column no. E of above Table-I, II and III. I am of this ( opinion that penalty is commensurate with the aforesaid failure committed by the Notice and penalty so imposed upon the Officers-in-default shall be paid from their personal sources/ income/ own funds.
10. In view of aforesaid submission and finding of para 8 above, the matter is discussed with all side, and all concerned in the matter. Accordingly, it is evident that the violation pertaining to Section 89 of the Companies Act, 2013 also be applicable. Further, in view of the above, the violation of Section 89 of the Companies Act, 2013 to be re-considered. The company/ officers and shareholder of the company are directed to file MGT-4, MGT-5 and MGT-6 in compliance of Section 89 of the Companies Act, 2013, failing which adjudication proceedings will be initiated u/s 89 of the Companies Act, 2013.
11. Pursuant to section 454(3)(b) of the Act, company, its officers are required to file e-form MGT-6 and BEN-2 within a period of 60 days from the date of this order, after following the due process.
12. is further directed that penalty imposed shall be paid through the Ministry of Corporate Affairs portal only as mentioned under Rule 3(14) of Company (Adjudication of Penalties) (Amendment) Rules, 2019 within 90 days of receipt of this order, and intimate this office with proof of penalty paid.
13. 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 be less than twenty five thousand rupees but which may extend to five lakh 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 but which may extend to one lakh rupees or both.
14. Appeal against this order may be filed in writing with the Hon’ ble Regional Director (NWR), Ministry of Corporate Affairs, Ahmedabad within a period of sixty days from the date of receipt of this order, in Foul’ ADJ (available on Ministry website www.mca.gov.in setting forth the grounds of appeal and shall be accompanied by a certified copy of this order. (Section 454(5) & 454(6) of the Act read with Companies (Adjudicating of Penalties) Rules, 2014).
15. In Terms of The Provisions of Sub-Rule (9) Of Rule 3 Of The Companies (Adjudication Of Penalties) Rules, 2014, copy of the order is being sent to M/S ARIES HOTELS PRIVATE LIMITED, Mr. THOTTAPPULLY NARAYANAN UNNI, DIRECTOR, Mr. RAOOF RAZAK DHANANI, DIRECTOR, Mrs. SUCHITRA DHANANI, DIRECTOR, INDIA and Regional Director (NWR), Naranapura, Ahmedabad and will also be Uploaded On MCA Website.
The adjudication notice stands disposed off with this order, observations and directions as above.
(Mukesh Kumar Soni)
Adjudicating officer & Registrar of Companies,
Pradesh, Gwalior.
Signed on this 26th day of June 2024.
Place: Gwalior, Madhya Pradesh.
