Introduction: The Registrar of Companies, Gujarat, Dadra & Nagar Haveli, has issued an order imposing penalties under Section 454 of the Companies Act, 2013, against Waheguru Coal Private Limited for violating Section 12(1) of the Act. This article provides an in-depth analysis of the case, outlining the facts, legal provisions, adjudication process, and penalties imposed.
Detailed Analysis: Waheguru Coal Private Limited, a registered company in Gujarat, was found to be in violation of Section 12(1) of the Companies Act, 2013, pertaining to the maintenance of a registered office capable of receiving communications and notices. Despite official communications and adjudication notices sent by the Registrar of Companies, the company failed to maintain its registered office or appear before the Adjudicating Officer.
Section 12(1) of the Companies Act, 2013 mandates companies to maintain a registered office capable of receiving and acknowledging communications and notices. Failure to comply with this provision attracts penalties under Section 12(8) of the Act, with fines accruing for each day of default.
The Adjudicating Officer, after considering submissions and examining the case, imposed penalties on Waheguru Coal Private Limited and its directors for the default period. The penalties were determined in accordance with the provisions of Section 12(8) of the Companies Act, 2013, and the Companies (Adjudication of Penalties) Amendment Rules, 2019.
The order specified the penalties for the company and its directors, taking into account the default period and maximum limits prescribed by law. The company and its officers were directed to rectify the default and pay the penalties within a specified timeframe. Failure to comply with the order would result in further legal consequences, including fines and imprisonment.
Conclusion: The imposition of penalties by the Registrar of Companies highlights the importance of compliance with statutory requirements under the Companies Act, 2013. Waheguru Coal Private Limited’s case underscores the need for companies to maintain registered offices and adhere to regulatory obligations to avoid penalties and legal repercussions. It serves as a reminder to corporate entities and their officers to uphold corporate governance standards and fulfill their obligations under the law.
*****
BEFORE THE ADJUDICATING OFFICER
REGISTRAR OF COMPANIES, GUJARAT, DADRA & NAGAR HAVELI
No. ROC/Sec.12 (2)/454(4)/ WAHEGURU COAL /STA (MD) 23-24/5727-703/
Dated: 05 Mar, 2024
ORDER FOR PENALTY UNDER SECTION 454 OF THE COMPANIES ACT, 2013 READ WITH COMPANIES (ADJUDICATION 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 WAHEGURU COAL PRIVATE LIMITED
(U23101G12010P1C062599)
Date of hearing: 24.01.2024
PRESENT:
1. Shri Keerthi Thej N. (ROC), Adjudicating Officer
2. Shri Indrajit Vania (DROC), Presenting Officer
3. Company/ Officers/ Directors/ KMP/ Authorized Representative: Absent
Appointment of Adjudication Authority:–
1. The Ministry of Corporate Affairs vide its Gazette Notification No. A-42011/112/2014- Ad. H dated 24.03.2015 has appointed the undersigned as Adjudicating Officer in exercise of the power 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. WAHEGURU COAL PRIVATE LIMITED (hereinafter referred to as “Company”) is a company registered under the provisions of the Companies Act, 1956/2013 in the State of Gujarat on 12.10.2010, having CIN: U23101GJ2010PTC062599 and presently having its registered office situated at A-104, Aagam Enclave-A, Near Someshwar Enclave, Vesu, Surat, Gujarat, 395007, India.”.
Facts of the case
3. On the basis of proposal of complaint cell for adjudication of Section 12(1) of the Companies Act, 2013 against the company M/s. Waheguru Coal Private Limited, the Office of the Registrar of Companies vide letter No. ROC-GJ/Compl. 100061976/2023/2628 to 31 dated 15.09.2023 had made an official communication with the above-named company’s registered office situated at A104, Aagam Enclave-A, Near Someshwar Enclave, Vesu, Surat, Gujarat, 395007, India, which has been returned from the Postal Authorities with remark “Left”. Accordingly, this office had issued Adjudication notice on 05.12.2023 under Section 454 of the Companies Act, 2013 read with Rule 3 of the Companies (Adjudication of Penalties) Rules, 2014 for violation of Section 12(1) of the Companies Act, 2013 to the company and its officers in default for non-maintaining of registered office.
4. It is noticed that the company has not maintained its registered office. This office had already issued Adjudication notice to the company on 05.12.2023 under Section 454 of the Companies Act, 2013 read with Rule 3 of the Companies (Adjudication of Penalties) Rules, 2014 to remain present through Authorised representative before the Adjudicating Officer for the proceeding as the company and its officers in default have violated the provisions of section 12(1) of the Companies Act, 2013. The company and its officers in default are liable for penal action under Section 12(8) of the Companies Act, 2013. But no body present before the Adjudicating Officer on date of hearing i.e. 24.01.2024.
5. As per Section 12(1) of the Companies Act, 2013 a company shall, on and from the fifteenth day of its incorporation and at all times thereafter should have a registered office capable of receiving and acknowledging all communications and notices as may be addressed to it.
6. As per Section 12(8) of the Companies Act, 2013 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.
7. That, the Ministry of Corporate Affairs vide its Gazette notification No. SO 831 (E) dated 24.03.2015 appointed the Registrar of Companies/ undersigned as Adjudicating Officer in exercise of the Power conferred by Section 454 of the Companies Act 2013 read with Companies (Adjudication of Penalties) Rules, 2014. Thereby, the Registrar of Companies is entrusted with the power to adjudicate the penalty as provided under Section 12(1) of the Companies Act, 2013.
8. That, the undersigned has reasonable cause to believe that the company is not maintaining its registered office as required under the provision of Section 12(1) of the Companies Act, 2013, the company and its officers in default have violated the provisions of section 12 of the Companies Act, 2013, which may be adjudicated under the purview of section 454(3) of the Companies Act, 2013. The company and every officer of the company who is in default are liable to be penalised under Section 12(8) of the Companies Act, 2013.
9. The Registrar of Companies vide the Companies (Amendment) Act, 2019 is entrusted with power to adjudicate penalty as provided under Section 12(8) of the Companies Act, 2013. The DGCoA vide letter dated 11.05.2022 has instructed that all cases filed under Companies Act, 1956 and Companies Act, 2013 can be considered under In-House Adjudication Penalty Mechanism (IAM). Pursuant to the instructions of the Ministry, issued vide letter dated 11.05.2022, further directions were given that all cases filed under CA, 1956 and CA, 2013 can be considered for adjudication process which are now decriminalized (earlier prosecutions were to be filed) by Companies Amendment Act effective from 02.11.2018 and through further Amendment in 2020 effective from 28.09.2020).
10. It is further submitted that there is a reasonable ground to believe that the company and its officers in default have violated the provisions of Section 12(1) of the Companies Act, 2013. In view of the facts narrated above, the company and its directors/ officers, in default are liable for penalty in pursuant to Section 12(8) of the Companies Act, 2013 and Rules, made thereunder.
Submission of the Presenting Officer
11. The Presenting Officer has further submitted that as seen from the Annual Return up to 30.09.2020 the paid-up capital of the company is Rs. 1,00,00,000/- and Turnover is Rs. 10,77,90,542.15/-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 falls 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 shall be applicable to the company.
EX- PARTE ORDER:
1. While adjudging quantum of penalty under 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.
2. With regard to the above factors while determining the quantum of penalty, it is noted that the disproportionate gain or unfair advantage made by the notice or loss caused to the investor as a result of the delay on the part of the notice to redress the investor grievance is 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 submissions made by the presenting Officer, the undersigned has reasonable cause to believe that the company and its officers in default have failed to comply with the Provisions of Section 12(1) of the Companies Act, 2013.Hence, I hereby imposed penalty as under:
Default for non-compliance under Section 12(1)
|
Violation Under Companies Act,2013 |
Company/ Directors/ Officer | No. of Days For Default | Penalty for Default (Rs.) in Pursuant to Section 12(8) of the C.A. 013 | Penalty to Be imposed for Default (Rs.) |
Maximum Limit for Penalty (Rs.) as per Section 12(8)Of C.A. 2013 | Penalty for Small company Section 446B of CA 2013 |
| Section 12(1) | WAHEGURU COAL PRIVATE LIMITED (COMPANY) | 131×1000= 131000/- | 1,00,000 | 131000 | 1,00,000 | 65500 |
| MR. SUN EETA BHATIA (DIRECTOR) | 131×1000= 131000/- | 1,00,000 | 131000 | 1,00,000 | 65500 | |
| MR. KARANDEEP SINGH BHATIA (DIRECTOR) | 131×1000= 131000/- | 1,00,000 | 131000 | 1,00,000 | 65500 | |
| MR. DAVENDER SINGH BHATIA (DIRECTOR) | 131×1000= 131000/- | 1,00,000 | 131000 | 1,00,000 | 65500 |
[Default counted from 15/09/2023 to 24/01/2024]
Adjudicating Officer is of the opinion that penalty is commensurate with the aforesaid default committed by the Noticees:
4. The company/ Officer is further directed to rectify the default failing which this office shall proceed further in the matter pursuant to Section 454A of the Companies Act, 2013 for noncompliance of the aforesaid provisions of the Companies Act, 2013.
5. 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.
6. 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, Naranpura, 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 Company (Adjudication of Penalties) (Amendment) Rules, 2019].
7. 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 the fine which shall not be less than Twenty Five Thousand Rupees but which may extend to Five Lakhs Rupees and the 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 which may extended to one Lakhs Rupees or with both.
The adjudication notice stands disposed off with this order.
Registrar of of Companies & Adjudicating Officer
Gujarat, Dadra Nagar Haveli
