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COMPANY LAW (Guideline Answers) : Intermediate Examination
COMPANY LAW (Guideline Answers) : Intermediate Examination
Page 1 of 14
JUNE 2003
Question 1
(20 marks)
Answer 1
According to Section 293(1) of the Companies Act, 1956 the Board of Directors of a
public company, or of a private company which is a subsidiary of a public company,
shall not except with the consent of such public company or subsidiary in general
meeting:
a. sell lease or otherwise dispose of the whole, or substantially the whole of the
undertaking of the company, or where the company owns more than one
undertaking, of the whole, or substantially the whole, of any such undertaking.
Therefore the main steps to be taken in the given case are:
1. Call for a Board Meeting, after giving notice to all the directors of the company
in prescribed manner and fix up the date, time, place and agenda for a general
meeting to pass a resolution for disposing of the undertaking, manufacturing
glass, with or without modification.
2. (i) In case of listed companies, as in the given case, the resolution should be
passed through postal ballot [under Companies (Passing of Resolution by Postal
Ballot) Rules, 2001].
3. Issue notices in writing at least 21 days before the date of meeting (if meeting is
also proposed to be held) proposing the ordinary Resolution with suitable
explanatory statement. Hold general meeting and pass the resolution
(Authorizations may be given to Directors, Secretary etc.)
4. Forward three copies of Notice and a copy of proceedings of general meeting to
the stock exchanges with which shares of the company are listed.
5. Effectuate the transaction by executing sale deed, conveyance deed etc.
6. File the resolution along with explanatory statement (in Form No.23 - Section
192), with concerned Registrar of Companies, within 30 days of its passing
along with fees.
7. Applicability of Section 293(2), if any shall be noted.
8. If resolution passed by general meeting, imposes some conditions as to use,
disposal or investment of the sale proceeds, then such conditions should also be
followed.
Question 2
a. Specify the conditions subject to which the following are treated as exempt deposits:
Answer 2(a)(i)
As per Rule 2(b) (x) of the Companies (Acceptance of Deposits) Rules, 1975, the
amount raised by issue of debentures secured by mortgage of immovable property is
treated as an exempt deposit if the amount of such debentures does not exceed the
market value of such immovable property.
Answer 2(a)(ii)
As per Rule 2(b)(ix) of the Companies (Acceptance of Deposits) Rules, 1975, amounts
received from directors of a private company is treated as an exempt deposit, provided
the director concerned furnishes at the time of giving the money to the Company, a
declaration in writing that the amounts are not being given out of funds acquired by
him/ her by borrowing or accepting from others.
Answer 2(b)
Pursuant to the provisions of Section 372A of the Companies Act, 1956 no approval of
the members is required in respect of making loans to and investments in and
providing/giving guarantee/security for, other bodies corporate, if the aggregate of the
loans and investments made so far, the amounts for which guarantee or security so far
provided to or in all other bodies corporate along with the investment, loans, guarantee
or security proposed to be made or given by the Board, does not exceed sixty per cent
of the paid up share capital and free reserves or hundred per cent of free reserves,
whichever is higher.
ii. any investment made in shares allotted in pursuance of Section 81(1)(a) by way
of rights shares.
iii. any loan made by a holding company to its wholly-owned subsidiary company.
iv. any guarantee given or any security provided by a holding company to its
wholly-owned subsidiary company.
v. any acquisition by a holding company, by way of subscription, purchases, or
otherwise, the securities of its wholly-owned subsidiary company.
Answer 2(c)
Yes, a company can accept deposits without publishing any text of advertisement in
the newspaper.
The statement in lieu of advertisement is valid for six months from the date of the
closure of the financial year in which it is issued or delivered or until the date on
which the balance sheet is laid down before the company in annual general meeting
and where the annual general meeting for any year has not been held, the latest day on
which that meeting should have been held in accordance with the provisions of
Companies Act, 1956, whichever is earlier.
Question 3
Examine the following with reference to the relevant provisions of the Companies Act,
1956:
i. A meeting of the Board of directors of Opaque Ltd. was convened on 30th September,
2002, but the meeting did not take place for want of quorum. As a result, the company
did not hold any Board meeting for the quarter ended 30th September, 2002 and there
is a complaint that the company has violated the provisions of the Companies Act, 1956
in this regard.
ii. Hi-Fi Computers Ltd. wants to file its documents with the Registrar of Companies in
computer print-out form.
iii. A director failed to disclose his interest in a contract in which he was interested and the
same was approved at the Board meeting.
iv. Goody-Goody Ltd. proposes to appoint Johar, a relative of one of the directors of the
company, as general manager (marketing) on a monthly remuneration of Rs. 60,000.(4
marks each)
Answer 3(i)
According to Section 288(2) of Companies Act, 1956, the provisions of Section 285
relating to the holding of atleast one Board Meeting in three months and atleast four
such meetings in a year can not be deemed to have been contravened merely by reason
of the fact that a Board Meeting which had been called in compliance with the terms
of the said section could not be held for want of quorum. Thus the allegation that the
company has contravened the provisions of Section 285 in the matter of holding the
Board Meeting is not correct.
Answer 3(ii)
Hi Fi Computers Ltd. can file its documents with the Registrar of Companies in
computer printout form. Section 610A(1) of the Act, provides that a statement
contained in a document and included in a printed material produced by a computer,
referred to as ‘computer printout’, subject to the satisfaction of conditions given in
Section 610A(2), shall be deemed to be also a document for the purposes of this Act
and the rules there under and shall be admissible in any proceedings there under
without further proof or production of the original, as evidence of any facts or contents
of the original of which direct evidence should be admissible. The conditions in
respect of a computer printout shall be the following:
Answer 3(iii)
Section 299 casts a duty on every director to disclose the nature of his concern or
interest, whether direct or indirect, in a contract or arrangement or proposed contract
or arrangement entered into or to be entered into by or on behalf of the company at a
meeting of the Board of Directors.
Every director who fails to disclose his interest in any contract or arrangement shall be
punishable with fine, which may extend to Rs. 50,000. It is also provided in Section
283(1)(i) that the office of a director shall automatically become vacant if a director
acts in contravention of Section 299. Therefore, in this case the director, as he failed to
disclose the interest in a contract in which he is interested which was approved by the
Board in a meeting is liable for punishment under Section 299(4) and his office of
directorship automatically becomes vacant under Section 283(1)(i). He is also liable to
be prosecuted under Section 283(2A) and to refund to the company all remuneration
received as director after cessation of his directorship. The company is also entitled in
equity to rescind the contract and to recover whatever consideration it has given to the
other party [North West Transportation Co. v. Beatty (1887) 12 App Cas 589 (PL)]
Answer 3(iv)
Question 4
a. The Companies (Amendment) Act, 2000 has prescribed an additional duty on the
Board of directors to include directors’ responsibility statement in
the Board’s report. Explain briefly the details to be furnished in the said statement. (4
marks)
b. Rao & Rao, a firm of chartered accountants, have to be appointed in place of Shah &
Shah, chartered accountants, as the auditors of Freebee
Ltd. Explain the steps to be taken with regard to the appointment and payment of
Answer 4(a)
The Companies (Amendment) Act, 2000 has prescribed an additional duty on the
Board of Directors to include in the Directors’ Report, additional particulars by way of
Directors’ Responsibility Statement. Section 217(2AA) provides that the Directors’
Report shall also include a Directors’ Responsibility Statement indicating therein that:
Answer 4(b)
In the given case as Rao & Rao, chartered accountants have to be appointed as the
auditors of Freebee Ltd. in place of Shah & Shah, the provisions and procedure given
in Section 225 have to be complied with. According to Section 225 of the Companies
Act, 1956 if a person other than a retiring auditor has to be appointed, a special notice
shall be required for passing a resolution at an Annual General Meeting. On receipt of
notice of such resolution, the company shall send a copy to the retiring auditor who
may make representation in writing with a request to notify to members of the
company. The company shall send the representation to the members in accordance
with Sub-section (3) of Section 225 (unless the representations are received too late,
whereupon they may be read out at the meeting). Thereafter, a general meeting has to
be convened to pass the ordinary resolution by simple majority. A written certificate
from the proposed auditor to the effect that appointment if made, will be in accordance
with the limits specified in Section 224(1B) shall also be obtained. If the company is
listed, the requirements of the listing agreement also have to be complied with and the
stock exchanges have to be informed accordingly.
Answer 4(c)(i)
Cypres means near to it. Where the object/mode of a Charitable Trust specified by the
settler is or subsequently becomes incapable of performance, impossible,
impracticable or un-lawful, the Trust will not necessarily fail but the Court has power
to apply the Trust to some other charitable object/mode as nearly as possible
resembling the mode specified by the author. This power of the Court is called the
Doctrine of Cypres. This doctrine applies to charitable object, which is general and not
specific.
Answer 4(c)(ii)
A Trust is extinguished:
Answer 4(d)
Question 5
Answer 5(a)
A company in the eyes of law is regarded as an entity separate from its members. It
has an independent corporate existence. Any of its members can enter into contracts
with the company in the same manner as any other individual. Further from the juristic
point of view a company is a legal person distinct from its members. It has its own
corporate personality. This principle is referred to in the ‘veil of incorporation’. The
effect of this principle is that there is a fictional veil between the company and its
members. However, while by fiction of law a corporation is a district entity, yet in
reality it is an association of persons who are in fact the beneficial owners of all the
corporate property. The circumstances or the cases in which the courts have
distinguished the corporate personality are:
1. Protection of Revenue: The courts may ignore the corporate entity of a company
where it is used for Tax evasion. [CIT v. Meenakshi Mills Ltd., AIR 1967
S.C.819]
Answer 5(b)
The conversion of a Private Company into a Public Company can be grouped under
the following heads:
3. Conversion by Operation:
Question 6
a. Explain the powers of the Company Law Board to prevent oppression and
mismanagement. (8 marks)
Answer 6(a)
According to Section 171(1) of the Companies Act, 1956 a general meeting may be
called by giving not less than 21 days’ notice in writing. However Section 171(2)
provides that an Annual General Meeting may be called by giving a shorter notice
with the consent of all the members entitled to vote at the meeting and in case of any
other meeting (including extraordinary meeting) (a) with the consent of members
holding not less than 95% of such part of the paid up share capital of the company as
gives a right to vote at the meeting or (b) having, if the company has no share capital
having not less than 95 percent of the total voting power exercisable at that meeting.
Answer 6(b)
According to Section 174 of the Act, unless the articles of association of the company
provide for a larger number, five members personally present in the case of public
company and two members personally present in the case of any other company, shall
be the quorum of the meeting of the company. Thus quorum represents the number of
members in whose presence the meeting of a company can commence its
deliberations. Articles in the given case stipulate a limit of 6 members.
Answer 6(c)
In pursuance of Section 397 and 398, CLB has the powers to make such orders, as it
may deem fit with a view to bringing to an end or preventing matters complained of,
whereby the affairs of a company are being conducted in a manner prejudicial to the
public interest, or in a manner oppressive to any member or members, or in respect of
a material change in the ownership, management, or membership which is prejudicial
to the interests of the company or public at large.
According to Section 402 of Companies Act 1956, the Company Law Board may
without prejudice to the generality of it’s powers under Section 397 or 398, provide
for-
Question 7
a. Acrid Ltd. maintains the minutes book of the Board meetings in loose leaf
system and gets them bound once in three months. Can it do so? Board
meetings were held on 24th March, 2002 and 15th April, 2002. Ronie, who
was the chairman of these two meetings died on 1st May, 2002, without
signing the minutes of the Board meeting held on 15th April, 2002. How
should the minutes be signed and by whom? (5 marks)
b. Explain the procedure for passing the resolution by circulation under
Section 289 of the Companies Act, 1956. (5 marks)
c. No company can appoint a person as its sole selling agent, if he has a
substantial interest in that company, without prior approval of the central
government. Explain ‘substantial interest’. (6 marks)
Answer 7(a)
Section 193(1) of the Companies Act, 1956 enjoins that the minutes of all proceedings
of every general meeting and of every meeting of Board of Directors or a committee
thereof, must be entered within 30 days of the conclusion of the relevant meeting in
the books kept for that purpose with their pages consecutively numbered. The
Department of Company Affairs, however has expressed that it would refrain from
taking any action against the company which maintained its minutes in the loose leaf
form, provided that adequate safeguards are taken against falsification and loose
leaves are bound in books at reasonable intervals say six months. In this case since the
Minutes Book leaves are bound once in 3 months (Jan. - March 2002) the same is in
order.
The Minutes of the Board Meeting are required to be written in a period of 30 days
from the date of the meeting held. [Section 193(1)]. But there can not be any instances
that the same must be signed with in a period of 30 days from the date of the Board
Meeting (Dept. Circular 25/76 dated 1.9.76) According to Section 193(1A) minutes of
a Board Meeting may be signed by the Chairman of the said meeting or the Chairman
of the next succeeding meeting.
In this case Mr. Ronie who was the Chairman of the Board Meeting held on 24.3.02
and 15.4.2002 died on 1.5.2002 without signing the minutes of meeting held on
15.4.2002. The Chairman of the Board Meeting held after 15th April 2002 for the first
time may sign the minutes of Board Meetings held on 15.4.2002 in accordance with
Section 193(1A)(a).
Answer 7(b)
The procedure for passing resolution by circulation as under Section 289 of the
Companies Act, 1956 is as follows:
a. Circulate the draft of the resolution in duplicate with the necessary papers if
any, to all the directors then in India not being less in number than the quorum
for Board Meeting and to all other directors at their usual addresses in India for
approval by signing one copy of the resolution and sending it back to the
company.
b. If all or majority of the above directors as are entitled to vote on the resolution
approve the resolution, the resolution, shall be deemed to have been duly passed
by the Board.
c. Record the resolution having been passed by circulation in the minutes of the
immediate next board inserting.
d. See that the resolution does not pertain to the matters, which can not be passed
by the Board by circulation. [Section 262(1), 292(1)(a), (1)(aa), (1)(b), (1)(c),
(1)(d), (1)(e), 297, 299, 307, 316, 386, 372A etc.]
e. Enclose a copy of the circular resolution to the Agenda of the ensuing
immediately next board meeting. Resolutions so passed may also be noted
alongwith decisions thereof mentioning therein as notes that the said resolution
was approved by so many number of directors and a certain number of directors
dissented from it, and recorded in the minutes of such meeting.
Answer 7(c)
Section 294AA provides that no company shall appoint any individual, firm or body
corporate, who or which has a substantial interest in the company, as sole selling agent
of that company unless such appointment has been previously approved by Central
Government. According to Explanation (b) to Section 294AA, the ‘substantial
interest’ is defined as under:
Substantial interest -
Question 8
Answer 8(a)
A private company or a company having no share capital may commence business and
exercise its various powers immediately after it is incorporated. A public company
having share capital on the other hand must obtain certificate to commence business
from the Registrar of Companies before it can commence its business or exercise its
borrowing powers.
In order to obtain this certificate the Company must comply with the provisions of
Section 149 of the Companies Act. The procedure for obtaining the certificate varies
with the fact whether the company has issued a prospectus or not. If the company has
issued a prospectus then the procedure stated in Section 149(1) becomes applicable
and if it has not issued a prospectus then the procedure laid down in Section 149(2)
shall apply.
Answer 8(b)(i)
According to Section 275 of the Companies Act, 1956, no person shall, save as
otherwise provided in Section 276, hold office at the same time as director in more
than 15 companies. Also, Section 277(2) provides that if a person already holding the
office of director in 14 companies or less is appointed, as a director of other
companies making the total number of his directorships more than 15, he shall choose
the directorships which he wishes to continue to hold or accept, so however the total
number of directorships, old and new, held by him shall not exceed fifteen. In the
present case, Prabhavi is already a director in 14 companies. Therefore, he can be a
director or Growfast Ltd. as the total number of directorships does not exceed 15.
Answer 8(b)(ii)
According to Section 278 of the Companies Act, 1956 the following companies are
excluded for calculating the limit of 15 companies:
In making the above said calculation, any company referred in (i) to (iii) above shall
be excluded for a period of 3 months form the date on which the company ceases to
fall with in purview of these clauses.
Answer 8(c)
Section 372A(b) of the Companies Act, 1956 provides that no company shall, directly
or indirectly give any guarantee or provide security, in connection with a loan made by
any other person to, or to any other person by, any other body corporate, exceeding
60% of its paid up share capital and free reserves, or hundred percent of its free
reserves, whichever is more. With the given facts, as Facts and Figures Ltd. stood
surety for an amount which is about 3% of its paid up equity capital, there is no
apparent violation on its part.
Also, Section 299 of the Act provides that every director of a company who is in any
way, whether directly or indirectly, concerned or interested in a contract or
arrangement, or proposed contract or arrangement, entered into/ to be entered into, by
or on behalf of the company, shall disclose the nature of his concern or interest at a
Answer 8(d)
According to Section 264(2) of Companies Act, 1956, a person other than a director
re-appointed after retirement by rotation or immediately on the expiry of his term of
office or an additional or alternate director, or a person filling a casual vacancy in the
office of a director under Section 262, appointed as a director or re-appointed as an
additional or alternate director immediately on the expiry of his term of office, or a
person named as a director of the company under its articles as first registered, shall
not act as a director of the company unless he has within thirty days of his
appointment signed and filed with the Registrar his consent in writing to act as such
director. The principle underlying is that a person who is already a director and is only
seeking re-appointment need not file his consent in writing, as his functioning as a
director is itself evidence of consent. An additional and alternate director are also not
required to file consent [Laljibhai C.Kapadia v. Laljibhai B Desai (1973) 43 Com
cases 17 AIR 1972 Bom. 276]. However, persons who were directors but had ceased
to be directors for some reason or other, before the general meeting at which they are
to be reappointed, should file the consent; i.e. when there is an interval, however small
it may be, between the time of closure of tenure and the time of reappointment, the
consent must be filed. Therefore, consent should be obtained from Madan.The use of
‘immediately’ indicates that there should be no intervening period between the expiry
of the term of office and reappointment.