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OJCA/127/2010 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 127 of 2010
In
COMPANY
PETITION No. 155 of 2008
In
COMPANY APPLICATION No. 278 of 2008
=========================================================
COLOURTEX
INDUSTRIES LIMITED - Applicant(s)
Versus
REGISTRAR
OF COMPANIES - Respondent(s)
=========================================================
Appearance :
MRS
SANGEETA N PAHWA for Applicant(s) : 1,
MR PS CHAMPANERI,for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 23/04/2010
ORAL
ORDER
Present
application has been preferred by the applicant herein Colourtex
Industries Ltd., petitioner of the Company Petition No.155 of 2008
for an appropriate order directing the Registrar of Companies,
Ahmedabad to accept the Form No.21 from the applicant under the
provisions of Section 394 of the Companies Act, 1956 in relation to
the order dated 23.9.2008 made by this Hon’ble Court in Company
Petition No.155 of 2008.
Applicant
is petitioner of the Company Petition No.155 of 2008. The aforesaid
Company Petition was moved for seeking sanction of the scheme of
arrangement in the nature of amalgamation of Vicol Pvt. Ltd., Jaytee
Chem Pvt. Ltd., Parth Prints Pvt. Ltd., Jaycol Industries Pvt.
Ltd.,Colourtex Exports Pvt. Ltd. Colour Synth Industries Pvt. Ltd.,
Aisling Technologies Pvt. Ltd. and Anthracol Dyes and Intermediates
Pvt. Ltd. with Colourtex Industries Ltd. By common order dated 23rd
September, 2008, this Court allowed the said petitions and
sanctioned the scheme.
That
the applicant-Company was required to produce the certified copy of
the common order dated 23rd September, 2008 passed in
Company Petition No.147 of 2008 to Company Petition No.155 of 2008
along with Form No.21 within a period of 30 days. However, there was
a default on the part of the petitioner in producing the certified
copy of the order sanctioning the scheme along with Form No.21 and
therefore, when the applicant submitted Form No.21 online with the
respondent-Registrar of Companies, Ahmedabad, the same was not
accepted as it was not submitted within the prescribed time. Hence,
the applicant-Company has preferred the present application for the
aforesaid relief.
Initially,
Shri Pahwa, learned advocate appearing on behalf of the applicant
requested to pass an appropriate order directing the respondent to
accept the Form No.21 along with orders passed by this Court on 23rd
September, 2008 made in Company Petition Nos.147 of 2008 to 155 of
2008 online. However, as the said prayer was opposed by Shri
P.S.Champaneri, learned Assistant Solicitor General of India
appearing on behalf of the respondent pointing out that non
submitting of the order passed by the Hon’ble Court sanctioning the
scheme along with the form No.21 within 30 days is considered to be
a default warranting prosecution and the payment of fine, Shri
Pahwa, learned advocate appearing on behalf of the applicant has
submitted that the applicant-Company and its Officers of the Company
i.e. Directors against whom the prosecution can be launched are
ready to compound the said offence. It is submitted that as per the
provision of Section 621-A of the Companies Act, default / offence
is punishable. It is submitted that maximum fine which can be
imposed for the default as provided under Section 394(4) of the
Companies Act is Rs.500/- upon the Company and each and every
Officer of the Company. He has submitted that who can be said to be
Officer for the purpose of default and the prosecution is defined
under Section 5 of the Companies Act, 1956. Therefore, it is
requested to permit the applicant-Company and its concerned
Directors to compound the offence / default in not submitting the
certified copy of the order passed by this Court sanctioning the
scheme along with Form No.21 on imposing even the maximum fine. It
is submitted that if the aforesaid course is adopted, it will be in
the interest of parties inclusive of respondent and avoid
unnecessary inconvenience to the parties. It is submitted that even
otherwise, the respondent is required to launch prosecution before
the appropriate Competent Criminal Court in which Companies and its
Directors will have to appear and then to compound the default. It
is submitted that all the aforesaid procedure can be avoided. It is
further submitted that even Section 621-A of the Companies Act even
the default can be compounded and even the prayer to launching of
the prosecution. Therefore, it is requested to consider the
aforesaid prayer.
Shri
P.S.Champaneri, learned Assistant Solicitor General of India has
submitted that in view of the Affidavit filed by the
respondent-Company affirmed by its Director, Shri Kanakkumar
Jariwala, admitting that the Company has committed the default in
submitting the Form No.21 online as per Section 394 of the Companies
Act and they are compounding in the default/offence and considering
Section 621-A of the Act, the respondent has no objection, if the
default/offence committed by the Company and its officers are
permitted to be compounded and the fine is imposed. It is submitted
that he as well as respondent also share the same views expressed by
the learned advocate appearing on behalf of the applicant that
permitting the applicant and its officers inclusive of the Directors
to compound the offence for the default on imposition of the fine
will be in the interest of the parties and even the burden of the
Court will be reduced. It is submitted that either the Court or even
the Central Government can compound the default in question either
before the prosecution or even during the prosecution. Therefore, it
is requested to pass an appropriate order.
Heard
the learned advocates appearing for the respective parties at
length.
It
is an admitted position that there is a default committed by the
applicant in submitting Form No.21 online as per the provision of
Section 391(1) of the Companies Act, 1956. As per Sub-Section 3 of
Section 394 of the Companies Act, within 30 (thirty) days after the
making of an order under said section, every company in relation to
which the order is made shall cause a certified copy thereof to be
filed with the Registrar for registration. It further provides that
if default is made in complying with this Sub-Section (3) of Section
394, the Company, and every Officer of the Company who is in default
shall be punishable with fine which may extend to Rs.500/-(Rupees
Five Hundred Only). Officer who is in default is defined under
Section 5 of the Companies Act. As per the Section 5 of the
Companies Act for the purpose of any provision in the Companies Act
which enacts that an Officer of the Company who is in default shall
be liable to any punishment or penalty, whether by way of
imprisonment, fine or otherwise, the expression Officer who is in
default means all the following officers of the Company, namely:-
(a) the
managing director or managing directors;
(b) the
whole-time director or whole-time directors;
(c) the
manager;
(d) the
Secretary,
(e) any
person in accordance with whose directions or instructions the
Board of directors of the company in accustomed to act;
(f) any
person charged by the Board with the responsibility of complying
with that provision;
Provided
that the person so charged has given his consent in this behalf to
the Board;
(g) where
any company does not have any of the officers specified in clauses
(a) to (c), any director or directors who may be specified by the
Board in this behalf or where no director is so specified, all the
directors:
Provided
that where the Board exercises any power under clause (f) or
clause (g), it shall, within thirty days of the exercise of such
powers, file with the Registrar a return in the prescribed form .
As
per Section 621(A) of the Companies Act, Composition of certain
offences:- (1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), any offence punishable under
this Act (whether committed by a company or any officer thereof) not
being an offence punishable with imprisonment only, or with
imprisonment and also with fine, may, either before or after the
institution of any prosecution, be compounded by the Central
Government on payment of credit, by the company or the officer, as
the case may be, to the Central Government of such sums as that
Government may prescribe.
Provided
that the sum prescribed shall not, in any case, exceed the maximum
amount of the fine which may be imposed for the offence so
compounded:
Therefore,
even the offence/ default can be compounded even by the Registrar of
Companies on an application made by the Company for the same. In
view of the additional Affidavit and the request made by the learned
Counsel appearing on behalf of the respective parties instead of
relegating the applicant to submit an appropriate application before
the respondent for compounding the evidence, this Court itself is
considering the request of the applicant-Company for compounding the
default.
It
is submitted on additional Affidavit that applicant-Company has 4
(four) Directors, namely, (1) Kanakkumar Jayantilal Jariwalal (2)
Vishadkumar Jayantilal Jariwala (3) Pravinchandra Dhansukhlal
Kabutarwala and (4) Maheshchandara Dhansukhlal Kabutarwala and the
said Additional Affidavit is filed by and on behalf of the
applicant-Company affirmed by its Director, Shri Kanakkumar
Jariwala, admitting that the applicant has committed the default in
submitting the form No.21 online along with the certified copy of
the order passed by this Court sanctioning the scheme as per the
provision of Section 394(1) of the Companies Act, 1956 and that
Company and its Director/s plead the guilty and request to compound
the evidence/ default which is permissible under Section 621-A of
the Act. It is submitted that the applicant-Company does not have
Manager and/or Secretary. It is further submitted that all the
aforesaid 4 (four) Directors can be said to be responsible for the
default. It is submitted that there is no other officer of the
company who can be covered within the meaning of officer in default
defined in Sec.5 of the Act for the purpose of Section 394(3) of the
Act. It is further submitted that as per provision of Section 621-A
of the Act, this default is compoundable. It is further submitted
that Director/s is/are ready and willing to get the default
compounded. Therefore, it is requested to permit the applicant and
the remaining Directors to compound the default of imposing the
penalty / fine of Rs.500/-. Considering the above and considering
the relevant provision of Companies Act, more particularly, Section
5, Section 394(3) and Section 621-A of the Companies Act and the
request made by learned advocate appearing on behalf of the
applicant permitting the applicant and its concerned Directors to
compound the default in question and the fact that learned Counsel
appearing on behalf of the respondent through Registrar of Companies
has not opposed the same and has taken fair stand. As per table
given below, the applicant and its following Directors,
1
Shri
Kanakkumar Jayantibhai Jariwala
Directors
of the applicant-Company
2
Vishadkumar
Jayantilal Jariwala
3
Pravinchandra
Dhansukhlal Kabutarwala
4
Maheshchandra
Dhansukhlal Kabutarwala
are
permitted to compound the default/offence in submitting the Form
No.21 online along with certified copy of the order passed by this
Court passed in Company Petition Nos.147 of 2008 to 155 2008 as
required under Section 394(4) of the Companies Act, 1956 and the
applicant and the aforesaid 4 (four) Directors are hereby held
guilty for the default/offence committed by them as per Section
394(4) of the Act, 1956 and are punished for the said offence and
are punished with fine of Rs.500/- each.
(1)Applicant-Company,(2)Shri
Kanakkumar Jayantibhai Jariwala, (3) Vishadkumar Jayantilal Jariwala
(4) Pravinchandra Dhansukhlal Kabutarwala and (5) Maheshchandra
Dhansukhlal Kabutarwala, are hereby directed to pay / deposit the
fine of Rs.500/- each with the Registrar of Companies within a
period of 3 (three) weeks from today and applicant-Company is
directed to comply with Section 394(3) of the Companies Act and on
production of the Chalan of depositing of payment of aforesaid fine,
if the certified copy of the order passed by this Court in aforesaid
Company Petition Nos. 147 of 2008 to 155 of 2008 dated 23.9.2008
along with Form No.21 online is submitted within a period of 2 (two)
days from payment of such fine, respondent is directed to accept the
same and it can be treated as compliance of Section 394 (4) of the
Companies Act, 1956.
As
agreed by learned advocate appearing on behalf of the applicant,
applicant-Company shall pay an amount of Rs.5,000/- (Rupees Five
Thousand Only) by way of A/c.payee cheque in the name of Shri
P.S.Champaneri, learned Assistant Solicitor General of India to be
paid directly within a period of 15 (fifteen) days from today
towards the cost and/or professional fees.
With
this, present application is disposed of.
(M.R.SHAH,
J.)
(ashish)
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