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THE DISCIPLINARY COMMITTEE

THE INSTITUTE OF COMPANY SECRETARIES OF INDIA

IN THE MATTER OF COMPLAINT OF PROFESSIONAL OR OTHER MISCONDUCT

ICSI/DC: 239/2014

Date of decision: 28th December, 2015

Ministry of Corporate Affairs (MCA) ....Complainant

Vs.

Mr. Gautam Bandopadhyay, ACS-6048 ....Respondent

ORDER

1. A complaint dated 8 th May, 2014 in Form I was filed under Section 21 of the Company Secretaries Act, 1980 read with sub-rule (1) of Rule 3 of the Company Secretaries (Procedure of Investigations of Professional and other Misconduct and Conduct of Cases) Rules, 2007 (the Rules) by Ministry of Corporate Affairs (MCA) through Mr. Sanjay Kumar Gupta, Dy. Director (hereinafter referred to as the 'Complainant') against Mr. Gautam Bandopadhyay, ACS-6048 (hereinafter referred to as the 'Respondent').

2. The Complainant has inter-alia stated that during the course of processing of e­Form 61 regarding petition for shifting of its registered office from one state to another filed on 16th January, 2009, it was observed that Mis. Sajjan Commercial Enterprises Ltd., has passed a Special Resolution in the EOGM held on 5th March, 2007 for shifting of its Registered Office from NCT of Delhi to the State of West Bengal. The Complainant further stated that the said Resolution was filed with ROC Delhi on 16th January, 2009 vide e-Form 23 thus violating Section 18(1) of the Companies Act, 1956. In addition the Respondent has filed a Compliance Certificate on 19th November, 2007 for the FY 2006-2007 & mentioned in the para 7, 17 & 26 that no EOGM was held during the FY 2006-2007; whereas the company vide e-Form 23 informed that EOGM was held on 5th March, 2007.

The Complainant further stated that in para 17, the Respondent stated that the company was not required to obtain any approvals from the Central Government, Company Law Board, Regional Director etc. As prescribed under the various provisions of the Act; whereas since company has passed Special Resolution uls 17 of the Companies Act, 1956 for shifting of its registered office from one State to another, it is required to obtain approval of the Central Government, Company Law Board uls 17 of the Act thereby furnishing wrong statement. The Complainant further stated that in para 26 of Compliance Certificate, it is stated that the company has not altered the provision of the MOA with respect to the situation of the company's registered office from one state to another state during the year which is also a wrong statement as the company has purportedly passed a Special Resolution during the year for shifting of Registered Office also making liable to the company or the professional for action under section 628 of the Companies Act, 1956.

The Complainant further stated that it is observed that the last two e-Forms 20B filed by the company vide SRN P8l230278 & Q02956l9l states its Registered Office at 2, Rowland Road, Kolkata-700 020, West Bengal. However, as per e­Records (Form 18) company Registered Office is at Vardan House, 17A139, Ajmal Khan Road, WEA, Karol Bagh, New Delhi, thus the signatory Director & certifying Professional to the said two e-Forms 20B have also furnished false information to ROC and liable for action U/S 628 of the Companies Act, 1956.

The Complainant further stated that Notices were issued by ROC Delhi to the said persons on 2pt January, 2013. The replies were received vide letter dated 15th

April, 2013 that in respect of both the FY 2011-2012, the Form of Annual Return of a company having share capital is respectively attached with each e-Form 20B, where the address of Registered Office have been mentioned as Vardan House, 17A139, Ajmal Khan Road, Karol Bagh, New Delhi along with telephone No. 011­23517151. The Complainant further stated that the company has admitted its fault and stated that it was not intentional and was purely accidental and without any mala-fide intention.

3. Pursuant to sub-rule (3) of rule 8 of the Rules, a copy of the complaint was sent to the Respondent vide letter dated 22nd May, 2014 calling upon him to submit the written statement. The envelope containing the letter dated 22nd May, 2014 sent to the Respondent returned undelivered on 13th June, 2014. A copy of the complaint was sent again to the Respondent vide letter dated 16th June, 2014 calling upon him to submit the written statement. The Article tracking report of the India Post depicts the delivery of the item (complaint) to Mr. Gautam Bandopadhyay, the Respondent on 21 st June, 2014. A reminder dated 15th July, 2014 was sent to the Respondent calling upon him to submit the written statement but the envelope containing the letter dated 15th July, 2014 returned undelivered on 28th July, 2014.

4. Pursuant to Rule 9 of the Rules, the Director (Discipline) after examination of the material on record, vide his prima-facie opinion dated 4th August, 2014 observed that as per Shri C H Jaganadh Reddy, Assistant Director, RD, North, the Respondent has issued the Compliance Certificate on 19th November, 2007 for the financial year ended 3 1st March,2007, wherein it has been inter-alia stated that no EOGM was held during the said financial year by Mis. Sajjan Commercial Enterprises Ltd. and the company was not required to take approvals of the Central Government, Company Law Board, RD etc., as may be prescribed under the various provisions of the Companies Act, 1956. Whereas, since the said company has passed Special Resolution U/S 17 of the Companies Act, 1956 for shifting of its registered office from one state to another, it is required to obtain approvals from the Central Government, Company Law Board U/S 17 of the Companies Act, 1956 and thereby the Respondent has furnished wrong statement.

Further, the Respondent has not submitted his reply to this complaint. It is on record that the Article tracking report of India Post shows that the letter has been delivered to the Respondent on 21 st June, 2014. Moreover, the Respondent has also not responded to the letters sent to him by the ROC.

In absence of any reply from the Respondent, the contents of the complaint are deemed to have been admitted by the Respondent in absence of any specific denial by him. Therefore, in view of the forgoing, the Respondent is prima-facie 'Guilty' of professional Misconduct under clause (7) of Part I of the Second Schedule of the Company Secretaries Act, 1980.

5. The Disciplinary Committee at its meeting held on 28th August, 2014 considered the prima-facie opinion dated 4th August, 2014 of the Director (Discipline) and the material on record. The Disciplinary Committee agreed with the prima-facie opinion and decided to proceed further in the matter in accordance with the Company Secretaries Act, IS80 and the Company Secretaries (Procedure of Investigations of Professional and other Misconduct and Conduct of Cases) Rules, 2007.

6. Accordingly, a copy of the prima-facie opinion of the Director (Discipline) was sent to the Respondent and the Complainant vide letters dated 2Sth August, 2014 asking them to submit the written statement and the rejoinder respectively, however the envelope sent to the Respondent was received back as undelivered on 5th September, 2014 with remarks mentioned 'left'.

7. The Respondent vide email dated 17th September, 2014 was asked to provide his communication address as the envelope containing the letter dated 2Sth August, 2014 along with prima-facie opinion of the Director (Discipline) sent to his address available was received back undelivered. Further, a letter dated 30th October, 2014 was issued to EO(EIRO) forwarding therewith one sealed envelope containing the letter dated 30th October, 2014 addressed to the Respondent along with prima-facie opinion of the Director (Discipline); asking EO(EIRO) to arrange to send the sealed envelope to the Respondent address by sending any messenger and deliver against acknowledgement. EO (EIRO) vide e-mail dated 5th November, 2014 confirmed that the messenger has gone to the address of the Respondent and found the door was locked. The Respondent was contacted over phone and was asked to provide any other address where the prima-facie opinion can be delivered. The Respondent over phone gave his residence address and asked to deliver the same at his residence. Accordingly, vide letter dated 5th

December, 2015 the prima-facie opinion of the Director (Discipline) was again sent through official of HQ on his official visit to Kolkata which was delivered at his residence on II th December, 2014 against acknowledgement. The Respondent vide e-mail dated 14th December, 2014 confirmed that he has received the envelope and also provided the address for further correspondence.

8. The Respondent vide letter dated 24th December, 2014 had submitted his written statement, which was sent to the Complainant vide letter dated 6th January, 2015 asking him to submit the rejoinder. The Complainant vide letter dated lOth March, 2015 stated that the complaint sent by him is self-explanatory and they have no further comments to offer in the matter.

S. The parties vide letter dated 15th May, 2015 were called upon to appear before the Disciplinary Committee on Sth June, 2015. Further, the notice was also issued to the Respondent via e-mail dated 21st May, 2015 calling upon him to appear before the Disciplinary Committee on Sth June, 2015.

10. On Sth June, 2015, the Disciplinary Committee noted that the parties vide letter 15thdated May, 2015 were called upon to appear before the Disciplinary

Committee on SthJune, 2015. It also noted that the notice was also issued to the Respondent via e-mail dated 21 st May, 2015 calling upon him to appear before the Disciplinary Committee on Sth June, 2015. Further, Mr. Gautarn Bandopadhyay, the Respondent and Mr. Shyarn Sunder, Deputy Director, MCA, the Complainant, appeared before the Disciplinary Committee and made oral submissions.

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The Disciplinary Committee, after considering the submissions made by the Respondent, advised to find out the date of filing of alleged Form 66 by the Respondent with the MCA. Accordingly, the Complainant was asked vide letter dated 26th June, 2015 to submit the requisite information followed by reminder dated 31 st July, 2015. However, no communication has been received from the MCA as on date.

11. On 14th September, 2015, the Disciplinary Committee after considering the material on record and the nature of issues involved in this matter and in the totality of the circumstances related to this case decided to give last and final opportunity to the MCA for providing the dates of filing of the following e-forms on the MCA portal­

(i) Form 66 filed by Shri Gautam Bandopadhyay, PCS pertaining to the Compliance Certificate issued to Mis. Sajjan Commercial Enterprises Ltd., for financial year ending on 31 st March, 2007.

(ii) Form 23 filed by Mis. Sajjan Commercial Enterprises Ltd., for filing the Special Resolution passed in EOGM held on 5th March, 2007 of Mis. Sajjan Commercial Enterprises Ltd.

The Disciplinary Committee decided that incase MCA fails to provide the details as sought; the Committee will proceed ex-parte. Accordingly, a letter dated 17th

September, 2015 was sent to the MCA for providing the requisite information.

12. On 5th October, 2015, the Disciplinary Committee noted the communication(s) sent to MCA and that MCA has not replied to the same. The Disciplinary Committee advised that the MCA be once again apprised about the same and accordingly one more opportunity be given to the MCA. Accordingly, vide letter dated 23rd October, 2015 MCA has been requested once again to provide the requisite information.

13. On 28th December, 2015, the Disciplinary Committee noted that MCA has not replied to the communication(s) sent to them asking them to provide the requisite information despite reminders. Therefore, the Committee decided to proceed ex­parte in the matter. The Disciplinary Committee observed that the Respondent has issued the Compliance Certificate to Mis. Sajjan Commercial Enterprises Ltd., on 19thNovember, 2007 for the FY 2006-2007 wherein in the para 7, 17 & 26 the Respondent has stated that no EOGM was held by Mis. Sajjan Commercial Enterprises Ltd., during the FY 2006-2007; whereas the Complainant has contended that the company vide-Form 23 has informed that EOGM of Mis. Sajjan Commercial Enterprises Ltd., was held on 5th March, 2007.

The Disciplinary Committee further observed that the said Form 23 was apparently filed by the company on 16thJanuary, 2009 i.e. after the issuance of the Compliance Certificate by the Respondent. Further the Complainant has also not provided the dates of filing of the following e-forms on the MCA portal­

1. Form 66 filed by Shri Gautam Bandopadhyay, PCS pertaining to the Compliance Certificate issued to Mis. Sajjan Commercial Enterprises Ltd., for financial year ending on 31 st March, 2007.

II. Form 23 filed by Mis. Sajjan Commercial Enterprises Ltd., for filing the Special Resolution passed in EOGM held on 5thMarch, 2007 of Mis. Sajjan

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Commercial Enterprises Ltd.

It is evident from the records that the Respondent has issued the Compliance Certificate to Mis. Sajjan Commercial Enterprises Ltd., for financial year ending on 31 st March, 2007 prior to filing Form 23 from which the legitimacy of the EDGM of the company held on 5th March, 2007 has been questioned by the Complainant.

The Disciplinary Committee after considering the material on record and the nature of issues involved in this matter and in the totality of the circumstances related to this case decided to close the matter as the Complainant has failed to substantiate the allegations levied against the Respondent and also not provided the information sought despite many reminders.

Accordingly, the compliant stands disposed off.

(SK~Member

Date: \ '8' \ , \ f)....o I b

(Atul H Mehta) Presiding Officer

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