IN RE Vs. ICOMM TELE LTD AND ORS
LAWS(NCLT)-2016-8-28
NATIONAL COMPANY LAW TRIBUNAL
Decided on August 29,2016

IN RE Appellant
VERSUS
ICOMM TELE LTD AND ORS Respondents


Referred Judgements :-

VLS FINANCE LTD. V. UNION OF INDIA [REFERRED TO]
HOFFLAND FINANCE LTD VS. STATE [REFERRED TO]
RELIANCE INDUSTRIES LTD VS. STATE [REFERRED TO]


JUDGEMENT

Rajeswara Rao Vittanala, Member - (1.)This application was originally filed before Company Law Board ('CLB'), Southern Regional Bench, Chennai. Upon constitution of National Company Law Tribunal ('NCLT') Bench at Hyderabad, the application is transferred to this Bench as the case relates to the State of Telangana. Hence, we have taken the case on records of NCLT, Hyderabad Bench and deciding the case. This application is filed under section 621A of Companies Act, 1956 read with regulations 35, 40, 44 of Company Law Board Regulations, 1991 and also under section 149 of Companies Act, 2013 read with rule 3 of Companies (Appointment and Qualification of Directors) Rules, 2014 by seeking direction to compound the offence by imposition of minimum composition fee.
(2.)The facts of the case as averred in the application and are material to decide the issue in question are as follows:
(a) ICOMM Tele Ltd. was originally incorporated under the name and style "Advanced Radio Masts (P.) Ltd." on 30th January, 1989 under the provisions of Companies Act, 1956, vide Certificate of Incorporation No. 01-09561 of 1988-89 issued by the Registrar of Companies ('RoC'), Andhra Pradesh. In the year 1992, the company converted itself into the public Limited Company by complying with the procedure laid down under the provisions of the Companies Act, 1956 and consequently the word 'Private' was removed from the name of the company 31st July, 1992. In the year 1995, the company changed its name to ARM Ltd., by complying with the procedure laid down under the provisions of Companies Act, 1956 and consequently obtain a fresh Certificate of Incorporation from the RoC on 12th November, 2002. The company further changed its name to ICOMM Tele Ltd. on 6th February, 2003. The present Corporate Identity Number (CIN) of the company is U64203API989PLC009561.

The Registered Office of the company is situated at Plot No. 40-46, Phasel IDA, Cherlapally, HCL Post, Hyderabad, Andhra Pradesh 500051 and that the subject-matter of this application is within the jurisdiction of this hon'ble Bench.

(b) The authorised dhare capital of the company is Rs. 5,50,001,000 divided into 5,50,00,100 equity shares of Rs. 10 each.

The issued, subscribed and paid-up share capital of the company is Rs. 48,49,45,350 divided into 4,84,94,535 equity shares of Rs. 10 each.

(c) The main objects of the company are to carry business of manufacturers, installers, maintainers, sellers, distributors, exporters, importers, agents and dealers of and in electrical and electronic devices, etc., and it is currently engaged in the business of EPC Contractor and providing comprehensive infrastructure solutions for Power, Telecom, Defence, Water and Waste Water sectors in India and abroad.

(d) When the scrutiny of records of the applicant's company was undertaken, it was noticed that the company failed to appoint a woman director on its Board of directors as per section 149 of the Companies Act, 2013 read with rule 3 of the Companies (Appointment and Qualification of Directors) Rules, 2014. Accordingly, the impugned show-cause notice was issued to the company and its directors by the RoC, Hyderabad vide Ref. No. RAP&TG/TBR/009561/2015/SCN/1054, dated 10th August, 2015, under section 149 of the Companies Act, 2013 read with rule 3 of the Companies (Appointment and Qualification of the Directors) Rules 2014 questioning the applicants as to why penal action, under section 450 of the Companies Act, 2013, shall not be initiated against the applicants for not appointing a woman director on the Board of directors of the company.

(e) The company failed to reply to the said show cause notice.

(f) It was stated by the applicants that the company has appointed Mrs. Nivedita Rani Paturu, women director (Holding DIN: 02387966) on 28th September, 2015, in accordance with the provisions of the Companies Act, 2013 and as per requirement laid down under section 149 of Companies Act, 2013. However/the company delayed in intimating the same to the RoC in Form DIR-12. Subsequently it was intimated to the RoC in Form DIR-12 only on 25th April, 2016.

(g) The RoC, in the absence of any communication or reply from any of the applicants and due to unavailability of any information with regard the presence of a women director on the Board of directors of the company, filed a criminal complaint vide CC No. 900003 of 2016, under section 450 of the Companies Act, 2013, before the hon'ble Court of Special Judge for the Economic Offences-cum-VIII AMSJ Court, Hyderabad for prosecuting the applicants for non-compliance of section 149 of the Companies Act, 2013 read with rule 3 of the Companies (Appointment and Qualification of Directors) Rules, 2014. It is stated that the last hearing in the case was held on 28th April, 2016 for examination under the section 251 of the Code of Criminal Procedure and the matter stands posted for trial on 23rd May, 2016.

(h) It is stated that the provisions of section 149 of Companies Act, 2013, came into force with effect from 1st April, 2014. In terms of section 149 of the Companies Act, 2013, a company, shall comply with such provisions within a period of one year from the date of the notification of section 149. The delay in the present case to appoint a woman director is 5 months and 28 days.

(i) The applicants have filed affidavit dated 16th August, 2016 during the course of arguments by stating that the company was undergoing a Corporate Debt Restructuring ('CDR') scheme under the guidelines of Reserve Bank of India ('RBI') since the company is facing financial crisis. The reason stated for not appointing a woman director on the Board within the time prescribed is due to delay in obtaining various approvals and consents from various authorities.

(j) It is further stated that the applicant-company or its officers/directors have not intentionally, deliberately and wilfully committed the said offence and there was no mala fide objective or purpose behind it.

(k) It is further submitted that the applicant-company incurred operating losses from previous year which are as follows

(3.)We have heard Mr. Y. Suryanarayana, learned counsel for applicant on 10th August, 2016 and 17th August, 2016, carefully perused various averments made in the application dated 5th May, 2016, additional averments made in the affidavit dated 16th August, 2016 filed during the course of arguments and the report of RoC forwarded to CLB, Chennai vide proceedings No. ROCH/Legal/Sec149/621A/COMM/STACK/2016 dated 27th May, 2016.
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