V.S.Rao, - (1.) THE petitioner-company is a company registered with the Registrar of Companies, Maharashtra, having it registered office at Room No. 4, Thambai Co-operative Society, Sewri-Koliwada, Sewri(E), Mumbai. THE company's books of account and other records were inspected by the officers of Ministry of Corporate Affairs under Section 209A. During the inspection some contraventions of the Companies Act have been identified by the inspecting officers. THE company as per its statement has preferred suo motu application for compounding of its offences. Accordingly, the company submitted three applications along with its officers in default to the Registrar of Companies, Mumbai, for compounding of offences of violation of the Companies Act.
(2.) The Registrar of Companies, Maharashtra after examining the compounding application received under Section 621A of the Companies Act, 1956, for contravention of the Companies Act, has forwarded the same to this Bench with his report which is as follows: This office has received an application under Section 621A of the Companies Act, 1956, of compounding an offence under Sections 81(1A) and 154, Schedule I, Table A, Article 29 and Schedule I, Table A of the Companies Act, 1956. The application has been signed by: 1. Mr. Ramesh S. Parmar (on behalf of the company and individual capacity); 2. Mr. Sandeep A. Mehta ; and Mr. Arun K. Mehta. 3. The company was inspected under Section 209A of the Companies Act, 1956, show-cause notices were issued to the following directors of the company: 1. Mr. Viraj A. Patel; 2. Mr. Bipin H. Gandhi; and 3. Smt. Harsha H. Mehta.
(3.) BUT the abovementioned present directors have applied for compounding. "The facts of the case are as under: 1. Section 81(1A): The company has allotted the equity shares to M/s. Dhanvidhya Impex Ltd. and M/s. Fraternity Petro-Chem P. Ltd., to the tune of 1,00,000 and 50,000 shares, respectively, in board resolution passed on April 20, 2004. BUT no special resolution has been passed and the opportunity to the existing shareholders has also not been given. 2. Section 154: The company has closed its Register of Members from September 23, 2003 to September 30, 2003, September 23, 2004 to September 30, 2004 and September 23, 2005 to September 30, 2005, during the financial years March 31, 2003, March 31, 2004 and March 31, 2005 and fails to issue notice in the news paper as provided in the said Section. 3. Schedule I, Table A, Article 29 : The company has forfeited the share of the registered member of the company who failed to pay call, consideration without following the procedure laid down in the articles of association resulting in violation of Schedule I, Table A, Article 29 of the Companies Act. 4. Schedule I, Table A : As per board of directors meeting held on May 13, 2004, the board has passed the resolution of non-payment of call dues from M/s. Dhanvidhya Impex Ltd. and M/s. Fraternity Petro-Chem P. Ltd., on allotment of money along with an interest rate of 18 per cent, per annum from the date of following the last date fixed for payment of allotment money to the date of payment. The said resolution is in contradiction to Table A. Though the article provides that the Table A in the First Schedule to the Companies Act, shall not apply to this company, subject to the exercise of powers by special resolution. Now coming to the Article 52 of the articles of association which does not specify the rate of interest on non payment of dues from the shareholders. Now, where article do not provide, the Table A applies. Now coming to Table A, Schedule I, Sr. No. 16(1), the rate of interest should not be more than 5 per cent, per annum or such lower rate, if any, as the board may determine. Therefore, the company has violated the provisions of Schedule I, Table A of the Companies Act. In the circumstances, the application of the applicants may please be disposed of on merits.;