Category Archives: Chapter XXIX – CA2013

MISCELLANEOUS

ADJUDICATION OF PENALTIES


The law stated in this post is valid from 19th February 2019. The earlier post on the subject here was valid from 1st April 2014 till 18th February 2019.

Section 454 of the Companies Act 2013 discussed earlier here, deal with the adjudication of penalties.  This Section is supplemented by the Companies (adjudication of Penalties) Rules 2014. This Section was amended by the Companies (Amendment) Ordinance, 2018 and Its retained as amended by first and Second Company amendment Ordinances of the year 2019. Accordingly, the Companies (adjudication of Penalties) Amendment Rules 2019 substituted Rule 3 of the Companies (adjudication of Penalties) Rules 2014. In this post, we will discuss these amended provisions.

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Determination of Punishment


The Companies Act, 2013 like most other laws dealing with offences did not have any scheme to determine the level of punishment. This is always the discretionary power of a court to determine a punishment within minimum (if any) and maximum punishment provided under law. Presently, the legislature and executives of the country want to control discretionary powers of the third organ – judiciary to all possible extent. Though discretion may result in higher corruption, subordinate courts governed by precedents and do very little use of discretion. The companies Amendment Act, 2017 introduces new Sections 446A to guide the discretionary powers. Amount of fine and/or imprisonment also reduced in several cases.

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Connection of Director’s Disqualification to Fraud


Disqualification of directors certainly is a hot topic among professionals practising corporate laws. Irrespectively of popular perception, the list compiled and released by Ministry of Corporate Affairs does not confer any disqualification to any director. These directors were already disqualified. In a serious violation, many of these directors might have failed to communicate about their disqualification to companies appointing or reappointing them after the actual date of disqualification. Such failure has penal consequences. This blog post will discuss serious consequences of the failure of compliance with law and procedures after incurring disqualification by a director.

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Remedies for disqualified directors of strike – off companies


Compliance way or Confine way! The Government made it clear. Directors who were on a long-term picnic after removal of names of their “shell companies” are now offered sleepless nights. I appreciate.

Ministry of Corporate Affairs issued two important lists in this regard –

  1. List Of Directors Associated With Struck Off Companies U/S 248
  2. List Of Disqualified Directors U/S 164 (2)(A)

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Powers Delegated to Regional Director


Government of India delegates its powers time to time to subordinate offices for better implementation of law. Section 458 of the Companies Act, 2016 confers power of such power of delegation in relation to the provision under the Act to the Government of India. Government of India issued notification S.O. 4090(E) dated 19th December 2016 regarding delegation of powers to Regional Directors, which came into effect from that date.

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Companies Act 2013 Amended by Insolvency and Bankruptcy Code 2016


A notification issued by Ministry of Corporate Affairs notified section 255 of the Insolvency and Bankruptcy Code, 2016. By virtue of notification of Section 255 of Insolvency and Bankruptcy Code, 2016; the Companies Act, 2013, stands amended in accordance with Schedule XI of the IBC2016 with effect from 15th November 2016. We shall have a short discussion here.

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Special Courts


Central Government by a notification published in Official Gazette on 18th May 2016 appointed the 18th day of May, 2016 as the date on which the provisions of clause (iv) of sub-section (29) of section 2, sections 435 to 438 (both sections inclusive) and section 440 of the Companies Act, 2016 shall come into force. These provisions deal with Special Courts under Chapter XXVIII of the Companies Act, 2013. Even though, we have already discussed these provisions originally earlier here and with amendment here, it may be beneficial to have these notified sections in this post again.

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